(13 years, 5 months ago)
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15:25 - Division on Amendment 306ZC - Ayes: 104 / Noes: 151 - Amendment 306ZC disagreed.
16:28 - Division on Amendment 306A - Ayes: 102 / Noes: 129 - Amendment 306A disagreed.
Baroness Finlay of Llandaff
306ZC: After Clause 142, insert the following new Clause—
“Youth rehabilitation orders: alcohol monitoring requirement
(1) In Schedule 1 to the Criminal Justice and Immigration Act 2008, after paragraph 24 insert—
“24A Alcohol monitoring requirement
(1) In this Part “alcohol monitoring requirement”, in relation to a youth rehabilitation order, means a requirement that during a period specified in the order, the offender must—
(a) not consume alcohol,
(b) for the purpose of ascertaining whether there is alcohol in the offender’s body, provide samples of such description as may be determined, at such times or in such circumstances as may (subject to the provisions of the order) be determined by the responsible officer or by the person specified as the person to whom the samples are to be provided, and
(c) pay such amount in respect of the costs of taking and analysing the sample as may be specified in the order.
(2) A court may not impose an alcohol monitoring requirement unless—
(a) it is satisfied that—
(i) the offender has a propensity to misuse alcohol and expresses willingness to comply with the alcohol monitoring requirement, or
(ii) the misuse by the offender of alcohol caused or contributed to the offence in question, and
(b) the court has been notified by the Secretary of State that arrangements for implementing the requirement are available in the local justice area proposed to be specified in the order.
(3) A youth rehabilitation order imposing an alcohol monitoring requirement must provide that the results of any tests carried out on any samples provided by the offender to the monitoring officer in pursuance of the requirement are to be communicated to the responsible officer.
(4) Where the offender has not attained the age of 17, the order must provide for the samples to be provided in the presence of an appropriate adult.
(5) The Secretary of State may from time to time give guidance about the exercise of the function of making determinations as to the provision of samples pursuant to sub-paragraph (1)(b).
(6) The Secretary of State make rules for all or any of the following purposes—
(a) regulating the provision of samples pursuant to an alcohol monitoring requirement, including hours of attendance, interval between samples and the keeping of attendance records;
(b) regulating the provision and carrying on of a facility for the testing of samples;
(c) determining the maximum and minimum fee that may be specified under sub-paragraph (1)(c), and the frequency of such payments;
(d) regulating the functions of the monitoring officer; and
(e) making such supplemental, incidental, consequential and transitional provision as the Secretary of State considers necessary or expedient.
(7) In this paragraph—
“appropriate adult” means—
(a) the offender’s parent or guardian or, if the offender is in the care of a local authority or voluntary organisation, a person representing that authority or organisation;
(b) a social worker of the local authority; or
(c) if no person falling within paragraph (a) or (b) is available, any responsible person aged 18 or over who is not a police officer or a person employed by the police;
“monitoring officer” means any person, other than the responsible officer, specified in an alcohol monitoring requirement as the person to whom samples must be provided.”
(2) Schedule (Youth rehabilitation orders: alcohol monitoring requirement) makes further amendments to the Criminal Justice and Immigration Act 2008.””
Baroness Finlay of Llandaff
My Lords, the amendments in this group have been improved since Committee to address all the Government’s criticisms. I thank the Minister for her interest in tackling the problems of alcohol in society and for discussing this scheme with me.
The amendments would allow magistrates an additional sentencing arm, that of an alcohol monitoring requirement, where offenders whose crime had been alcohol-fuelled could be referred to a compulsory alcohol sobriety scheme. Such schemes cannot happen, and therefore cannot be piloted and evaluated effectively, without primary legislation. This new sentencing power would allow courts to require an offender to abstain from alcohol and be regularly tested twice a day to demonstrate compliance as part of any sentence, with provision for how breaches should be dealt with. Alcohol recovery support would also be offered.
In Committee, the Government expressed concerns that I shall specifically address. First, they said that primary legislation was not necessary for there to be successful implementation of a pilot scheme in interested areas, such as parts of London. Primary legislation is essential. Without it, piloting such a scheme in a voluntary capacity would dilute its efficacy, not be cost effective and fail to tackle the recidivist alcohol offender. The main principles of the scheme—testing an offender regularly; making them pay for the tests, probably £1; and imposing sanctions if a test is breached—all require primary legislation.
Since Committee, the Government have proposed using a sobriety scheme in a penalty notice for disorder and conditional caution. Such a scheme might at first sight appear tougher than existing arrangements, could start immediately and might capture a few harmful drinkers into recovery, but it would not tackle the root problem. First, the offender would need to admit guilt, yet information from the police indicates that, where alcohol is involved, people often cannot remember their actions—that is the first spanner in the works.
Lord Soley
My Lords, I strongly support this group of amendments. I congratulate the noble Baroness, Lady Finlay, and fully support her in what she said. We know how serious alcohol abuse is. We have known that for many years. At the end of the day, the difference between now and previous years is availability—in price and outlets. Clearly, it is difficult for any Government to increase price or reduce outlets dramatically. If we are not going to do that, we have to find another way of dealing with that. This amendment has real possibilities.
One thing that we ought to focus on here is the young person’s side. Indeed, the only uncertainty I have about the noble Baroness’s amendment is that with young people as opposed to older people there may be some desirability in giving the court an option on whether to make it subject to the agreement of the young person or compulsory. You might want to consider it being compulsory for young people if the parents are doing a fairly good job in parenting but struggle to manage the alcohol abuse of a young person who may have a predisposition to alcohol abuse because of the known genetic aspect of alcohol addiction. It may then be beneficial to have a back-up for the family if they are working with the young person. There may be a case for leaving it to the court as to whether it should be with the agreement of the young person or not.
That becomes much more difficult with adults, who tend to deny the problem much more emphatically. A young person will often admit that they got into trouble because of drinking. They will know that they have a problem. How severe that becomes depends on the support system that they have around them in terms of family and friends. We need not worry too much about the US example. I am sure it is very good but these things change culturally. The principles underlying it are what should apply.
We know that young people go out and drink heavily and consistently, over a period of time; that is the big difference from years ago, because they have the money to do it and the outlets are there and it becomes an ongoing problem. That is the time when we need to intervene and to take some action to address it. When I see very young people—and sometimes the same person on several occasions during the course of a week or two—you know that that person is already getting into deep difficulties, and you would like to intervene at that stage. Having an ability to put them on this sort of regime would be very good.
Other systems of conditional treatment have been tested and tried over many years; it is applied on mental aspects and on other issues relating to probation orders and other orders of the court. So it should not be beyond our ability to devise something specifically on alcohol abuse in cases like this. I also like very much the idea of doing it as a pilot scheme, because I would be the first to acknowledge that over the decades we have tried many things, not just with alcoholics but with other groups. The noble Baroness, Lady Finlay, mentioned the drug groups. We have tried many things that we thought were good ideas but which have not turned out to work as we thought they would. So I do not mind if we do this on a piloted basis, setting it up for a certain period of time.
The noble Baroness, Lady Finlay, is absolutely right—and we all know it in this House—that the alcohol abuse problem is profoundly serious. The number of cases of young people, and increasingly young women at a very young age, with cirrhosis of the liver, which is one of the defining symptoms of alcohol abuse, is deeply disturbing. It is this issue of availability. If we are not going to stand up and say that we will reduce the outlet or increase the price, frankly we have to find something else. I cannot think of anything that is more effective than what is being proposed to the House today.
I have sat through sittings on this police Bill with various degrees of enthusiasm, but I have very great enthusiasm for this proposal. The House would be missing a very great opportunity if it did not back this amendment and if the Government did not give it a really good run for its money. It is a good idea and it is very likely to work. There are no guarantees in this game—we have thought that too often before—but there is a very good chance that it would work. It would be a missed opportunity if we did not put it in the Bill and give it a run. We owe it particularly to the young people in this country.
In the comments that I have just made, I do not want to include the older group of people. Of the current young group, many of them will not be able to stop drinking on their own in years to come; they will not just stop. Having in a distant past dealt with many people with severe alcohol problems, I think it is in many respects harder to get a person off alcohol abuse than it is from quite a few of the drugs available. The damage that is done to society is enormous. So I ask the Government to be generous and adventurous on this and to grab it and run.
Lord Brooke of Alverthorpe
My Lords, I am very pleased to add my support to the excellent response that the noble Baroness, Lady Finlay, has prepared to the points that arose in Committee. I was one of those who met Professor Keith Humphreys, who is the senior adviser to President Obama on drug and alcohol abuse, who gave us a very helpful presentation indeed on what they are doing in the States. They have made very good progress and are intending to roll out the programme over a much wider front, given the success that they have encountered.
On the point of different cultures, the one thing that those involved in drink and drug issues know is that they are widespread throughout countries in varying degrees. Some places have bigger problems than others, but those who have problems with drink and drugs have a common problem of approach. It behoves us that wherever we see people trying a new approach, if it is producing success and the kind of results that we have heard that this scheme is running, we should spend some time looking to see whether it can be applied in our home country.
The Americans are very progressive in many areas. They try schemes; yes, some of them fail, but they abandon those and move on. The problem I find from my experience of dealing with these issues in this country is that when we get an idea, we believe that it is going to work and research it very well indeed. We then start pouring a lot of money into it, which continues to go in regardless of what is happening with the scheme, yet we continue defending the status quo when others come to suggest trying to look for something a little different.
I hope that the Government will be prepared to think again on this and to be bold. The major issues which were troubling them have, I think, been answered by the noble Baroness in her response but I would underline the two points that I made previously. First, this will not work on a voluntary basis. It will work successfully on that basis in one or two areas, but then you will find that the probation officers move on and the police change. A different culture then occurs in the area where it has been successful, so it is not maintained and it disappears. This is all that we find happens when it is run purely voluntarily on an experimental basis. It needs instead to be in the Bill and to be a compulsory operation—again, on an experimental basis.
Secondly, there is a concern expressed that we might end up with more people going into jail at the end of the day. Well, some of those people will be going to jail in any event and will be costing the taxpayer an awful lot of money in the first instance. If this alternative runs, there is a chance that there will be significantly less cost to the taxpayer and to the public at large. I suggest to the Minister one way around this difficulty. Civil servants hate sunset clauses because they are seen as a mark of failure. We should be much more flexible in our approach to sunset clauses. If they are right that this will end up with more people going to jail—I do not believe that it will, and I think that most people around the House who attended these briefings do not think that—why do the Government not consider making these amendments subject to a sunset clause and bring that back at Third Reading? We can then find a way forward which would answer that problem.
I am sorry to think that my Front Bench is not going to give its full support to this venture. The Labour Party ought to be backing this. From a number of standpoints, it is a very helpful development indeed and even though our Front Bench may not be exalting my colleagues to join us in the Division Lobbies, I personally appeal very strongly indeed to the people on the Labour Benches to vote for this amendment, if we are pushed to a vote. However, I hope that is avoided and that we get a more positive response from the Minister than we have had before.
Lord Imbert
My Lords, I must declare an interest before I begin in that 50 years ago, when on night duty as a new constable on the streets of London, I found that the following morning, for weeks on end, one was standing in court with a defendant who was accused of a crime that turned out to be alcohol-related. As the Committee would expect, I have conferred with my former colleagues and, yesterday morning, I spoke to the territorial operations department of the Metropolitan Police to seek its view on this amendment. It is supportive, with one caveat: that this must be a magistrate’s decision. Police must not be expected to say, “This individual committed the crime because they were drunk”. That must be a decision of the magistrate but, with that one caveat, I know that my former colleagues support this amendment as indeed do I.
Lord Brooke of Sutton Mandeville
My Lords, it is a privilege to follow the noble Lord, Lord Imbert, who is a great deal more experienced in these matters than I am. I am also at one remove in following my namesake, who spoke earlier, and who alluded to the presentation which a number of us received on Monday morning. Reference has been made to the experience of the American professor from Stanford who gave a presentation to us about his White House experience. I would add the footnote that he also holds an honorary degree from King’s College London, so he is not without form on this side of the Atlantic.
Brevity is at a premium, so I shall not cover the ground that other speakers have covered. When the Minister spoke on the previous occasion in Committee, she indicated familiarity with the South Dakota experiment. I have a brief addition to make to that. Monday’s presentation emphasised the experience of the three states where the problem was most severe—North Dakota, South Dakota and Montana—and did so graphically with a parallel line high on the page representing North Dakota. A line at the bottom of the page indicated the average experience in the individual states in the US. A diagonal line from the top of the left-hand corner to the bottom right showed the way that South Dakota’s experience had so dramatically improved.
At the end of the presentation, I asked the professor what had been happening in the states that lay between the average figure at the bottom of the page and the experience in the Dakotas and Montana. He said that a series of them which fell in their own performance between the top and bottom lines had already also adopted the South Dakota experience, North Dakota and Montana having already done so. The most notable example of a state that had, as a result of the South Dakota experience, advanced to putting it on the statute book was California.
Lord Palmer of Childs Hill
My name is attached to the amendment and I thank the noble Baroness, Lady Finlay, for tabling it. I, too, attended Monday’s seminar. Also present was the Deputy Mayor of London, who was most appreciative of the scheme in that it would add to the ammunition which the authorities have in dealing with drunkenness.
I do not think that any other speaker has yet said that the issue is not about anti-drinking but is about anti-drunkenness. That is what sobriety means in this instance. I am still a councillor in the London Borough of Barnet where there is a lot of drunkenness on the streets. Not all of it is youth drunkenness, but it is drunkenness. We have tried various ways of stopping it. For instance, in the ward of Cricklewood that I represent, there is an anti-street-drinking order. That helps the police to enforce measures against drunkenness. We tried to apply the order in another area of my ward. The local authority has not supported that but the police have done so.
Although that is not specifically to do with the amendment in front of us, I mention it because I believe that those who enforce the law, whether magistrates or the police, must have as many armaments as possible to use with caution to ensure that our streets are safe and pleasant for society to live in. Too often, in the urban environment in which I live many people—not all of them young—are drunk on the streets and throw down their beer cans and bottles. Perhaps with this amendment we can help in some way. The noble Baroness, Lady Finlay, has done us a great service because whether or not the amendment is adopted, the Government have highlighted the fact that they are aware of the problem and have said that tests will be carried out. I thank the noble Baroness for bringing the matter before us.
Baroness Hayter of Kentish Town
My Lords, I add a few words in welcoming the amendment and urging the Government to respond positively to it. When I was a magistrate, I would have loved the possibility of this rehabilitation order to monitor ongoing alcohol consumption. As the noble Lord, Lord Palmer, suggested, it is one of a range of possibilities, but to have had this in one’s toolbox, as I gather the phrase is, would have been an enormous advantage.
As has been made clear, the amendment allows the magistrate this power only if alcohol caused or contributed to the offence—in answer to the noble Lord, Lord Imbert, I say that it is the magistrate who will take that decision—and if the offender has a propensity to misuse alcohol and is willing to comply with the requirement. As I argued in Committee, help with alcohol misuse should also be available but, as the noble Baroness, Lady Finlay, has said, we must consider the victims in assessing this possibility.
Most of what we now call domestic abuse, but when I was growing up we used to call wife-battering, is alcohol-fuelled. Violence on the streets, whether against property or against people, would undoubtedly be less without the addition of drunkenness. When are we going to do what the ordinary decent people who walk around our streets want us to do, which is to reduce alcohol-related disruption that affects their lives? That is the question that we have to answer.
As the previous speaker said, this is not anti-alcohol. Indeed, I should declare an interest that last night I was at the parliamentary beer dinner. I was very grateful that we had not reached this amendment by then. I am not against the consumption of alcohol but I am very much against the consumption of excessive amounts of it that then damages the people concerned or, in the light of this amendment, damages the life and well-being of others.
This is an enabling measure and does not require the courts to impose it. It is an opportunity for someone with the propensity to misuse alcohol in a way that damages others to have a period of sobriety—with help available, I hope—thus improving their own family lives as well as the well-being of others. I urge support for this.
The Lord Bishop of Chester
My Lords, I live in the middle of one of our cities so I see the typical culture late on a Friday or Saturday night, or indeed on other nights, and the malign influence on it of the excessive consumption of alcohol. In recent years I have also sat on the streets of Paris or Rome at 10 pm and seen virtually no evidence of the abuse of alcohol. Those who think that this measure is a step too far need to reflect upon the experience of many of our city centres.
Sometimes it is necessary for the law to take a clear stance to change culture. Drinking and driving is a prime example of that, where the law has changed the culture of how people approach the consumption of alcohol and driving to a much more responsible one. This is quite apart from the health benefits, which will be important to the noble Baroness who has moved the amendment. There is a clear case for sending a strong signal, with this or something like it, that I hope will lead to a change of culture on our streets.
Baroness Stowell of Beeston
My Lords, I support the principal objectives of this measure. I will not repeat everything that I said in Committee, but when I first heard about the new proposal—I was also at the briefing on Monday that has been referred to—I found that the most powerful and compelling thing about it was its simplicity. It is clear in its aim and simple in its practice, and it encourages responsibility. I know that the Minister feels strongly about alcohol-related crime and takes the issue seriously, so I will want to listen carefully to her response today. The only thing that I want to highlight is that, as with any new measure put in place to tackle the issue of alcohol-related crime, the aspects of simplicity and responsibility in this proposal should be taken account of.
Lord Stevenson of Balmacara
My Lords, this has been a useful and good discussion, repeating to some extent what we discussed in Committee but taking the debate a step further. The interesting thing about how the amendment now looks is that it has picked up a lot of the points that were made when we discussed this the first time around and tried to come up with a fresh look at some of the issues causing concern. To a greater or lesser extent, those aims have been achieved for the amendment. We should therefore consider it carefully.
At the heart of all this is a feeling that has not yet got through to some of those responsible for drafting and supporting the Bill, which is that alcohol is a drug and falls to be considered alongside cigarettes and hard drugs, and is not to be treated as a distinctive social phenomenon that we tolerate but are not concerned about unless it gets to a certain level. This came up time and again in our earlier debates, and is at the heart of what has been said today.
We know from the experience of trying to deal with this over the years and across many countries, and the number of reports that have come out, that you cannot treat any of the problems that alcohol causes in isolation from the three main strands. You have to deal with price; you have to deal with availability, in terms of the times that it is available to be purchased and used; and you have to have treatment. You cannot satisfactorily come up with a policy in this area unless you deal with all three. I think that the debates have again shown that we have still not got the answer on price, although there are some measures going forward that we might want to consider in due course.
Availability is indeed the subject of much of the discussion of some sections of the Bill. One hopes, although it is a bit of an experiment in some cases, that questions of availability will be dealt with. We may have to come back to that in the future.
Treatment is the big black hole into which we seem to pour all our aspirations, but from which we do not receive any real solutions. I said in Committee that, looking at how society deals with alcohol—and drugs more generally—we are moving far too quickly to a penal approach. We do not think about the impact that other possible solutions might have. We do not seem to be bringing forward alternatives for consideration at a time when there are worrying consumption trends and concerns about the fact that our young people seem to be drinking stronger and stronger drinks and causing problems. Although I understood what the noble Lord, Lord Palmer, was saying about drunkenness, it plays to my concern about the effects of the pursuit, use and abuse of alcohol, which come before that rather sympathetic view of drunkenness: “He’s just drunk; sorry about that”. Actually, it is much worse than that because that leads on to violence, as we have heard, both in the home and outside. It leads on to car crashes, traffic incidents and other problems—and, of course, the impact on children, which we have heard about.
The figures cited initially by the noble Baroness, Lady Finlay, and the noble Lord, Lord Brooke of Sutton Mandeville, were astonishing. If that is the effect of these schemes, admittedly in different cultures and places, we are bonkers if we do not try to take account of those and get some schemes going on this. On whether this scheme is the one that we should get behind, we have our doubts. We are not necessarily going to support this in the Lobbies if it goes to a vote because we are strongly of the view that the Government’s role in this matter is to remove the barriers to those who would wish to undertake pilots in this area, but not necessarily to support this particular scheme in this particular location. I will be interested to hear the Minister’s response to that. Governments should not stand in the way of those who have the interest, the capacity, the funding and the structure to introduce such a plan, and we wish them well with it, if they wish to go ahead with that. It seems completely wrong for the Government to be obstructing that at this time.
The consequence of our position—and this will probably be true of the government Front Bench—is that it seems to be only the Front Benches who are against the scheme. Speeches from all around the Chamber have been supportive of it. We were discussing that on the Front Bench before I stood; we seemed to think that we were probably in the wrong on this matter. I am afraid that I do not quite see the solution to it, but we will have a further discussion after I have sat down to see if I can persuade us to move gently towards any Lobby that might be opening up before us. We will certainly encourage people to move through that Lobby, even if we cannot do so ourselves. That may feel a little strange.
Lord Stevenson of Balmacara
I am just trying to be honest. I shall also be honest about the Home Office. The problem here is less that this is a bad scheme, or that these schemes on the whole will not help, but that the idea that the Home Office should sponsor this is a bit silly. At heart this is a public health issue. The idea that the Home Office, which is the home of repression and locking people up—as I characterised it, although perhaps I overstated the case—should be responsible is a little like asking cats to be responsible for the welfare of the mice in their house. You cannot do it. I challenge the Minister, if the Home Office cannot get behind this, at least to remove the obstructions to this scheme getting off the ground. We would support that. The Home Office should give up responsibility for this area and pass it to the Department of Health.
Baroness Browning
The noble Lord poses many challenges to me. It might be appropriate for me to remind the House that responsibility for drug and alcohol abuse is within my ministerial brief at the Home Office. I am conscious that, in addressing this part of the Bill, I have already spoken—perhaps extensively—in Committee about my commitment. While I hear what the noble Lord says about the Department of Health, which is very important and takes the lead on alcohol, this is none the less a matter that will have to be addressed by joined-up government. As has been said by several people, not least the noble Baroness, Lady Finlay, who moved this amendment, we need to look at a holistic approach.
I put on record that the Ministers in both the Home Office and the Ministry of Justice would like to see a sobriety scheme. Since we met to discuss this scheme in Committee, there have been extensive discussions at ministerial and official level with Members of this House and the office of the deputy mayor. We have tried very hard to come to some accommodation to find a scheme that works. The principle of the scheme is not in dispute.
I shall outline to the House why I must reject the amendment of—I am tempted to say “my noble friend” because we have worked closely together on so many issues in the past—the noble Baroness, Lady Finlay. She made her case very strongly. She will know that I have great respect for her expertise in this area and her dedication to resolving these problems, particularly that of crime resulting from alcohol. However, I must reject these amendments.
Perhaps it will be helpful if I first reiterate what has been said by the noble Lord, Lord Stevenson of Balmacara, and others. Sobriety, in itself, will not always tackle alcohol-related offending. Many offenders will require clinical treatment and support to aid their recovery. I choose those words carefully. Mention has been made of treatment but it is the Government’s intention, on both drugs and alcohol—there is often a combination of the two—that we should move on from treatment into recovery, which has to be the end goal. A lot of valuable work has gone into treatment. Nobody in any way suggests that treatment programmes are not an essential part of the journey. However, the end of the journey must now focus, for both alcohol and drugs, on recovery; it must not just end with treatment. I have to say that it is rather unclear whether the purpose of the amendments before us is punitive or rehabilitative. I see nothing in the amendments that gives us a steer as to how we should view this.
Lord Soley
Surely the purpose of provisions such as these is preventive and educational, particularly for young people. I accept what the Minister is saying but treatment is rather a different ball game.
Baroness Browning
I accept what the noble Lord says on that and do not dispute it at all. I support the principle of a sobriety scheme that seeks to tackle the problems caused by alcohol-related offending—particularly by binge drinking, which can blight communities—but I must still resist these amendments. Contrary to what the noble Baroness has said, an effective and robust sobriety scheme can be implemented using existing powers. Piloting this approach will provide us with firmer evidence on which to consider the need for legislative changes such as those proposed. I believe that a scheme could be started almost immediately.
My noble friend raised a number of concerns about piloting a sobriety scheme using conditional cautions. I wish to take a moment to focus on those. A scheme based on conditional cautions which is already on the statute book is favoured by the Government. Indeed, there is already interest in some parts of the country in looking at a scheme based on conditional cautions. However, I understand that London supports the scheme put forward by the noble Baroness.
It has been suggested that conditional cautions would not allow repeat offenders to be targeted by a sobriety scheme. While serious and persistent offenders should obviously be prosecuted at court, conditional cautions can be considered where an offender has committed previous offences. For example, a pattern of alcohol-related offending which has previously resulted in an offender receiving a penalty notice for disorder, a simple caution or perhaps even being prosecuted for a low-level offence may well be appropriate for a sobriety condition as part of a conditional caution.
It has also been suggested that offenders are unlikely to consent to a sobriety condition, but I believe that many will consent when they are informed by the police and the Crown Prosecution Service that the alternative is to be prosecuted for their conduct and to face the prospect of the prosecution applying for a drinking banning order on conviction. In these circumstances I believe that very many offenders will consider that accepting a sobriety condition—which can include requirements to undergo testing, and to pay for those tests, and which has clear consequences for non-compliance—is by far the preferable option. The noble Lord, Lord Soley, talked about the educational aspect and the right reverend Prelate talked about a change of culture. As I hope I have already reassured the House, I am adamant that we will pursue a change of culture. I will not go into too much detail because I have probably said this two or three times now, but I find it unacceptable that we have a culture in this country whereby it is acceptable for people to be seriously drunk in public places either as individuals or collectively. That is a significant change of culture that many of us have witnessed in our lifetime. Using the toolkit—that is the terminology—I am looking for every opportunity to change that culture. I do not underestimate how long that will take as the problem has taken decades to present itself as we see it now, but I hope to impact on it as much as possible.
I note the changes that the noble Baroness has made to her amendments since they were previously discussed. I also note that she and the Deputy Mayor of London have received legal advice on the amendments. There were question marks over the differing legal advice that the Home Office and the Deputy Mayor of London had received, particularly around matters to do with offenders’ convention rights. Although I agree that a sobriety scheme as the noble Baroness envisages it could be compatible with an offender’s convention rights, I believe that any primary legislation in this area would require careful consideration about when such a scheme would be proportionate and what safeguards might be needed to ensure that a court does not impose an alcohol monitoring requirement that risks breaching an individual’s human rights. This is a difficult area and one which the results of piloting conditional cautions would help to illuminate, as well as providing us with evidence of the scheme’s effectiveness.
I have touched on the issue of treatment leading to recovery, which is the Government’s aim. As has been mentioned, extremely serious criminal consequences can arise from alcohol abuse. It is important to distinguish between what we might euphemistically describe as binge drinking and those very serious crimes, in which I of course include domestic violence, where the way forward may well be a conviction. Whether it is associated with a conviction or not, it will require a most extensive package to address what are often the complex needs of the offender.
Lord Brooke of Alverthorpe
Are the Government contemplating putting into legislation the package that the noble Baroness is talking about, or will it be run on a voluntary basis? If it is the latter, why is it not attached to what is before us now?
Baroness Browning
The sobriety scheme based on conditional cautions has all the legislative power that it needs now. I do not need to put it into this statute; there is sufficient statute to run it now. If we were to move on later to something as described by the noble Baroness, we would, as I indicated, need to pick up the results of those pilots in future legislation.
If we take forward these pilots on the basis that I have outlined to the House, it will allow us to test locally some of the more challenging elements of such a scheme, including its funding, proportionality, enforcement and impact on reoffending. Although I recognise the problem that the amendments seek to tackle and am sympathetic to their objectives, I hope that the noble Baroness will understand why I am unable to support their adoption. However, I give my full support to testing the principles of the scheme that she proposes and hope to begin a number of pilot schemes before too long.
Baroness Finlay of Llandaff
I thank the Minister for her reply. I must preface my remarks by thanking her for her sincere commitment to tackling the alcohol abuse that we see in this country. None of us who have spoken today are anti-alcohol per se; it is the problem of the outcomes of harms.
I am a clinician, and if I am to evaluate any scheme of any sort, I compare one scheme with another scheme. The conditional caution scheme that the Minister outlined will require police constables to decide whether it is an alcohol-fuelled offence and whether to offer the scheme. That is the problem and is why, as my noble friend Lord Imbert outlined, the matter should be left with the magistrates. The noble Baroness, Lady Hayter, a magistrate herself, pointed out that it does not change the status quo; it does not stop something happening but simply provides an additional arm. If there is to be a sincere comparison of the different schemes in different parts of the country, I say hooray to that—let us do proper pilots and monitor them properly.
A sunset clause was suggested in the debate but the Minister did not mention it in her reply. She has seen the amount of support around the House today for including a scheme so that it can be piloted. These are people who have committed an offence who will be sentenced anyway; they will be either incarcerated or fined, probably in addition to losing their driving licence and other things. However, if there is a massive fine it will harm the children in the family much more than the offender because of all the things they will not be able to do when the money suddenly goes out of the household. With the proposed scheme the offender will pay directly—financially and, more importantly, with their time and commitment. Recovery is crucial. As I pointed out, recovery would be attached to this. It would be offered to people and they would be supported. We have evidence—I know it is from the US, which is why I am suggesting that the scheme should be piloted here—that long-term recovery is improved when people are put through a court-directed alcohol-monitoring scheme.
Before making a final decision, will the Minister say whether, in the light of today’s debate, she will consider coming back at Third Reading with a sunset clause? That would allow us to do a proper scientific study in the areas which want to use the scheme as outlined in the amendments, which requires primary legislation, in addition to the schemes which use police cautions as the Minister outlined. I need to know her response on inserting a sunset clause before we really decide where we are going.
Baroness Browning
My Lords, I am sorry that I did not pick up on the point about the sunset clause. I am not able to offer the noble Baroness a change in my view on such a clause. The amendments need substantial work to make them workable from a technical and legal point of view.
Baroness Finlay of Llandaff
My Lords, I am grateful to the Minister for clarifying that. I have taken extensive legal advice on this. I have files of costings advice in my office. Report stage is not the appropriate time to go through this. However, we have a chance to do something different and imaginative that might provide us with a fantastic tool to help people into long-term recovery. If we close the door on it now, so be it: but I want to keep the door open. Therefore, I feel obliged to test the opinion of the House.
Lord Marlesford
“Parliament Square committee
(1) Within six months of the passing of this Act, the Secretary of State shall by regulations establish a committee with responsibility for managing the controlled area of Parliament Square.
(2) The committee’s members shall be representatives of—
(a) all of the bodies which own or have responsibility for the controlled area of Parliament Square, and(b) the metropolitan police force.(3) The committee shall co-ordinate the work of its members in order to ensure that the controlled area of Parliament Square is kept clear of litter, detritus or other debris.
(4) The Committee shall report annually to both Houses of Parliament.”
Lord Marlesford
My Lords, we now move to the Parliament Square elements of this Bill. In moving Amendment 306A and speaking to Amendment 306B, which are very much interlinked, I am trying to save the Government from themselves. We are all agreed on the need for something to be done about Parliament Square and I think we are agreed on what should be done. Parliament Square is an appropriate place to have protests but at the moment it is completely out of control as a result of the encampments. In recent weeks and months, the encampments have grown greatly. A few months ago there were only eight tents; now there are over 30. In fact, a lot of Parliament Square has been taken over not so much by protesters but by rough sleepers. Obviously something has to be done. I am not producing the final word on this but I am producing what I believe to be a much more sensible and workable solution than the one in the Government’s own Bill.
We are all agreed on the need to end encampments, but I am seeking to remove Clause 147 and to replace it, in Amendment 306B, with my own clause. First, we have to look at Clause 145, which I am not in any way interfering with. It sets out provisions making the encampments illegal and sets out very clearly and in great detail how the tents and sleeping equipment should be classified. It says,
“‘sleeping equipment’ means any sleeping bag, mattress or other similar item designed, or adapted, (solely or mainly) for the purpose of facilitating sleeping in a place”.
That is a perfectly sensible and very wide definition, and of course cardboard boxes could be added because people sometimes adapt them to sleep in. But in a moment we will come to what I do not like in the Bill and noble Lords will see why it is rather inappropriate, not as a definition, but because of Clause 147.
Clause 147 spells out the terms and conditions for the seizure by the police of all the items listed in Clause 145. One of the problems of Parliament Square is that it has always been the responsibility of lots of different bodies: the Greater London Authority, Westminster City Council, the Metropolitan Police, and to some extent the Highways Agency. We want one committee—I do not mind terribly how it is organised—with representatives from all the bodies so that together they can run the thing in a sensible manner. That is set out in Amendment 306A.
Amendment 306B has been tabled because I really do not think that Clause 147 is an appropriate way of doing this. The police are to be asked to seize all these things. Clause 147(4) authorises the police to,
“use reasonable force … in exercising a power of seizure”.
Normally the word “seizure” is used for drugs, weapons, documents relating to serious organised crime and so forth. Are the police really to be used to seize blankets? Is there not a better way? And then what are the police to do with the things they seize? It is all laid out in Clause 147, which I wish to replace. Clause 147(5) states:
“An item seized under this section must be returned to the person from whom it was seized … no later than the end of the period of 28 days beginning with the day on which the item was seized”.
Does that make sense? Clause 147(6) goes on to state:
“If it is not possible to return an item under subsection (5) because the name or address of the person from whom it was seized is not known … the item may be returned to any other person appearing to have rights in the property who has come forward to claim it, or … if there is no such person, the item may be disposed of or destroyed at any time after the end of the period of 90 days beginning with the day on which the item was seized”.
We are aware of a shortage of police. Are they really to be given the role of maintaining tents, sleeping bags, mattresses and cardboard boxes until the appropriate time and seeking, no doubt diligently, to find out who they originally belonged to and returning them to their rightful owners? I am all in favour of the laws and rights of property, but this is a rather expensive way of doing it. Is it surprising that Councillor Colin Barrow, the leader of Westminster City Council, wrote to the noble Lord, Lord Campbell-Savours explaining why the proposals in the Bill simply will not work?
I fear that the Home Office is displaying a deep angst about this matter. I can see why that has been generated because when we had the democracy village on the green bit of Parliament Square, it took almost £1 million in legal fees to remove it. It was a tremendous performance. However, once the courts had ruled, it was eventually removed with remarkably little aggravation because in general people obey the law, provided that the law is in place.
We come now to my proposal, which is much simpler. The proposed committee will run Parliament Square, helping to decide what is appropriate in terms of demonstrations and all that, and of course we all start from the presumption that demonstrations are a good thing. The committee will have the power to authorise the removal of the items set out by the Government, but that will not be done by the police. Subsection (3) of my proposed clause simply states:
“The committee shall ensure that between midnight and 6am every night any items listed in subsection (2) are removed”.
I do not intend for this material to be removed by the police, but probably by Westminster City Council’s refuse removal people. That is a simple, unprovocative and unconfrontational method, and in general, people do not confront those who are kind enough to remove rubbish. Although I admit that it may be necessary in the first few days for the police to be present, I believe that it will quite quickly settle down given how quickly the democracy village came to an end. If people wish to bring their tents, they will have 18 hours out of 24 in which they can have them, but, on the whole, you have a tent because you want to sleep in it. If it is going to be removed at midnight and you then have six hours without it, the chances are that you will make your sleeping arrangements in a different manner.
My proposal is moderate and limited; it genuinely seeks to help the Government to achieve what we all want and what they have tried to achieve not quite so elegantly in their Bill. I beg to move.
Lord Campbell-Savours
This is the third time that I have risen on these issues in the past month. Perhaps I may repeat a couple of sentences from the letter of the Conservative leader of Westminster City Council, so that those in the House who do not know what he said in it are quite clear in their minds when they are drawn into the Division Lobby. He states:
“The council has concerns over the current wording of the bill. Our chief concern is that protesters would simply move to other parts of the square, requiring further prolonged and costly legal action. Fundamentally, we do not believe that the bill as it currently stands would deliver a solution to the problem once and for all, and we are concerned that it will be a further example of poor legislation in this sensitive area”.
If that is the view of the local authority, which has responsibilities in this area, we should go back to a blank piece of paper or adopt the Marlesford amendment.
Lord Tyler
My Lords, I can contribute to this debate with unaccustomed brevity, because I agree with both the contributions that have already been made. I hope that an additional reason for us all to be brief is that our noble friends on the government Front Bench have already read a great deal of the contributions that have been made, not least on the occasion of the Second Reading of the Bill of my noble friend Lord Marlesford but also on 10 June, when I, too, had the opportunity to put before your Lordships' House a Bill to try to deal with this particular point.
We must have a positive contribution to finding the solution to this problem. It is just not good enough to remove what is there. We need to move on; we need to move into a more positive situation where the square again becomes a genuine public space in the centre of our parliamentary democracy, with the abbey, the Supreme Court, the Treasury and Parliament all around. Our fellow citizens have a right to expect a proper, well planned solution for the future of Parliament Square.
In the debate on 10 June, I said:
“Our overall objective must surely be that the heart of our parliamentary democracy should be seen as such, with clear guidelines on what should be permitted and even encouraged to enhance this role, without recourse to unwieldy, excessive and unworkable regulation”.—[Official Report, 10/6/11; col. 518.]
I share the view of my noble friend that we must not impose on the police another set of defective regulations which are virtually unworkable. It is improper for us as legislators to impose a responsibility on them in that respect.
I am sure that my noble friends have also seen that there is real public interest in this issue, as was evidenced by an article in the Evening Standard yesterday—although that was a classic case of picking a good day to bury good news. Even so, there is real concern among all those who visit London, whether it be fellow citizens of the United Kingdom or people from abroad, about the unfortunate mess that is currently at the heart of our democracy.
I hope that the Government will give a positive response to my noble friend’s new clause and amendment, because, without it, I fear this situation will continue to be outrageously ridiculous.
Lord Ramsbotham
My Lords, I said at its Second Reading that I commend the Bill of the noble Lord, Lord Marlesford, for its simplicity, its clarity and, above all, its good sense. As the noble Lord, Lord Tyler, has said, Parliament Square is not an item on its own; it is part of a whole. If you see something looking like that, it reflects on the whole, and it reflects on all of us that, for years, the Houses between them have proved completely incapable of solving something apparently simple. Therefore, the public will ask, “What hope have they got of solving anything more complicated?”. This House and the surrounds of Parliament are cleaned and prepared every day for the following day. The beauty of the proposal of the noble Lord, Lord Marlesford, is that it enables the whole area, including the square, to be cleaned and prepared for every day and does not allow it to be traduced for purposes for which it is neither designed nor suitable.
Lord Cormack
My Lords, I strongly support what my noble friend Lord Marlesford has said. I took part in the Second Reading of the Bill of the noble Lord, Lord Tyler, and briefly intervened on my noble friend Lord Marlesford, but I have been speaking on this issue for many years. I raised it first in the other place when the squalid encampment first appeared in Parliament Square. All noble Lords, I am sure, believe in freedom of speech and freedom for peaceful demonstration, but that is not what we are discussing; we are discussing the defacement of a world heritage site that is the centre of our parliamentary democracy. It should not be beyond the wit of the Government to come up with a solution but, sadly, the last time a Government tried—a Government from another party—they failed. They produced draconian regulations and the squalid encampment remained.
I fear that my noble friend Lord Marlesford is only too correct in pointing to the deficiencies in the Bill as it is currently before your Lordships’ House: placing the duties of lost property custodians upon the Metropolitan Police is not the best way of using its all-too-depleted manpower. When my noble friend the Minister replies, I hope she will acknowledge the unworkability—and, indeed, the absurdity—of the proposals to which my noble friend has alluded. I hope she will accept the amendments of my noble friend Lord Marlesford. If she feels for technical reasons that she cannot do that, I hope she will agree to come back at Third Reading with a government amendment, having discussed the matter with the noble Lords, Lord Marlesford, Lord Tyler and others, and come up with a solution that we can all accept.
I have absolutely no desire to go into the Lobby against my noble friend the Minister, but unless she can either accept the amendment or promise to come back on Third Reading, after consultation with my noble friend Lord Marlesford and others, with a sensible and workable solution, the House will have no alternative but to express its concern in the only way that it can.
Lord Dear
My Lords, I spent a great part of my working life protecting the freedom of speech, which is one of the most important things that anyone can do in a democracy. I also vigorously resisted the thought police. I now find that I have to consider the blanket police, the cardboard box police, the sleeping bag police, and a vision of shaking people out of sleeping bags in the middle of the night and wondering whether you log them as lost or found property.
I support the amendments of the noble Lord, Lord Marlesford. It is very much in the public interest that we should do something—if not what the noble Lord suggests then something closely akin to it. As has already been alluded to, we are in the cradle of democracy. I find it difficult to walk into your Lordships’ House—as do many noble Lords—because of the mass of tourists who are here at the moment. Tourists flock from all parts of the world to look at us and the buildings around us, and they have to step over 20, 30 or more tents and placards. This is not only repugnant but quite unacceptable.
We should not overcomplicate matters, as the Government’s Bill suggests at the moment. I am a great believer in keeping things simple. The amendment of the noble Lord, Lord Marlesford, is a solution which goes a long way towards the simplicity we are looking for and we should support it. As the noble Lord, Lord Cormack, said, I hope the Minister will take this away and come back at Third Reading with something workable which is closely akin to the amendment of the noble Lord, Lord Marlesford.
Lord Morgan
My Lords, I will speak briefly. I certainly support the amendment. It is extremely clear, giving a clear chain of command to deal with these matters.
My complaint is not that these demonstrations are visually offensive. People who demonstrate against the established order are not likely to be immaculate in their appearance or even, with all respect, in their conception. My problem is that these demonstrations offend the right to demonstrate. It is a very precious venue for demonstrations to occur. The imperishable rights of free speech, for which people have given their lives over the centuries in this country, should be preserved. The problem is that these demonstrations take root. They took root in the most obvious, physical way by people sleeping there. That not merely causes offence, which I understand, but obstructs and cheapens the right to demonstrate.
I am all in favour of large numbers of demonstrations taking place in Parliament Square. There are lots of things in our country to demonstrate about and lots of evils to complain about. We should cherish the right to protest but I am against monopoly. This is a self-centred, self-indulgent form of monopoly that is harmful to the rights of free speech. For that reason particularly, I support the excellent amendment.
Lord Desai
My Lords, I have spoken every time that Parliament Square has come up in your Lordships’ House. I rise once again, as sort of the sole defender of the unlimited right of people to demonstrate, despite all the ugliness that they might display. What I like about the proposed new clause in the noble Lord’s Amendment 306B is subsection (1), which asserts that the committee will,
“facilitate lawful, authorised demonstrations in the controlled area of Parliament Square”.
As I have said before in your Lordships’ House, one reason why people stay overnight is that they are not quite sure that they will be allowed to come the next morning to demonstrate. Once a committee has been established and lays down the rules under which people can lawfully demonstrate—that is, between 6 am and midnight—that situation will be clarified. Then the rest of Amendment 306B will ensure what everyone else wants—tidiness in Parliament Square. I have never been a great fan of tidiness. I have seen far too many tidy parliamentary squares in various eastern European and other regimes. I much prefer untidiness. It is characteristic of democracy.
Lord Cormack
The noble Lord has tidied himself in a way that has impressed every Member of this House.
Baroness Hamwee
My Lords, I hope that what I am about to say does not damage the reputation of the noble Lord, Lord Desai. I, too, have argued throughout for the repeal of the SOCPA provisions and for not putting anything else in their place. I have said several times that aesthetic considerations—in other words, tidying up the square—should not be given more weight than considerations based on democracy.
I have a question for the noble Lord, Lord Marlesford, in his response to the debate. His amendments call for a committee consisting of representatives of the various bodies. The Metropolitan Police force is mentioned and clearly Westminster City Council and the Greater London Authority would be other candidates. I do not know if there are any more. In putting these amendments forward, what response has he had from those organisations—I assume he has consulted them at some stage during all of this—to the proposals that he now puts forward for a committee that will have some powers and obviously functions?
Lord Judd
My Lords, like others I find this amendment very helpful and sensible. I make only one observation. I think perhaps that some of the language being used in support of the amendment could be interpreted in a way that is not intended. We must not inadvertently move into a culture in which we see demonstrations as a sort of tokenism, whereby people have their ration of time for demonstrating. From time to time, there will be issues on which people feel so deeply and profoundly that they will want to continue their vigil through the night and perhaps through several days. I hope that in accepting and endorsing this amendment we will not in any way associate ourselves with a view that people can have their ration of time, and that is it. But we cannot have this physical obstruction and complete spoiling of one of the richest heritages in the country.
Lord Hylton
In response to the noble Lord, Lord Judd, I say that it may be foreseen that there may be occasions on which people wish to have an all-night vigil, but that does not mean to say that they have a right to bring tents and to sleep in them.
Lord Brooke of Sutton Mandeville
My Lords, I was approached only last night by my noble friend Lord Marlesford to ask what my views were and whether I would vote for him. I cautiously—because caution is my watchword—promised that I would come and listen to him. That is why I am here and, indeed, on my feet. I have not been approached by Westminster City Council, but all politics are local and I once represented that council in the other place, and am therefore sympathetic to it.
I have one personal footnote to make to this debate, a prior example to the body that my noble friend seeks to establish—the Paving Commission in Regent’s Park, which was set up during the period of Nash to look after good order in Regent’s Park. I realise that the Government might say that that is not an exact analogy, but the fact remains that the Royal Parks are another of the places in this great city where free speech is demonstrated, Hyde Park being a particular of that. The Paving Commission consisted entirely of those with a local interest, under an early-19th century statute, with two exceptions—the bailiff of the Royal Parks, who is a civil servant at the assistant secretary level; and a Lord Commissioner of Her Majesty's Treasury, which effectively means a senior government whip in the House of Commons.
I served as a commissioner for a couple of years and made a small contribution to the work of the Paving Commission by saying that it was all very well for the debates that we had in our regular monthly meetings for those who actually lived in the park, because they recognised absolutely everything that was being talked about. The bailiff of the Royal Parks to some degree and myself to a larger degree, because much of Regent’s Park lay outside my constituency, were not so familiar. I made the suggestion to the head of the commission that we should have a picnic every year and that the whole commission should make a tour of the whole park. I am glad to say that that suggestion was adopted and ever since nobody has ever been able to work out why they had never done it before. The scheme has worked extremely well for 200 years. It is a little difficult to apply modern parking regulations to legislation that was set up in the early part of the 19th century, but imagination has been deployed.
Therefore, having said to my noble friend last night that I would certainly listen to him, it would be churlish of me not to say that I would not listen to my noble friend the Minister. But I have to say on the basis of the debate that we have had so far that I am minded to vote with my noble friend and with Westminster City Council.
Lord Armstrong of Ilminster
My Lords, I sympathise with the objectives and purposes of the noble Lord, Lord Marlesford, in tabling these amendments and with those who have spoken in favour of it. There are two points on the practicability of the scheme that I would like to query, which both relate to this Parliament Square committee. First, would the authorities of the Palace of Westminster be represented on it? That is just a query; I do not know what is intended. Secondly, it seems that this committee would be in almost permanent session. I wonder if that is really practicable and I would welcome comments on that before I make up my mind on how to respond in a Division.
Lord Stevenson of Balmacara
My Lords, we have had a number of opportunities to discuss the issues that have been raised this afternoon. Indeed, there will be more because while we are still waiting for Committee stages on both Private Members’ Bills to come through, we have the debate today and one more opportunity on this Bill to try and resolve this. The issue itself is not difficult to encapsulate. As many people have suggested, we need some imaginative thinking about the relationship between Parliament, the abbey, the church, the public buildings and the public spaces around them that goes across the various dimensions that have been mentioned in this debate—security, access, traffic, tourism, history, heritage and, of course, the absolute requirement to ensure that demonstrations can take place.
The good thing about the amendment—indeed, it was in the Bill that we discussed last week—is that there is a laser-like focus on the two issues that we have been focusing on today. They are that we want to have a clear space within which the buildings that I mentioned can exist and the activities that we have been talking about can happen, but we also want to encourage demonstration—a very important aspect of this amendment. That far, we agree with everybody who has spoken that that is what we are trying to do but, as has been said already, the problem is that we do not seem able to solve it.
It seems to me and to our side that, as again has been mentioned, we have to be a bit careful that we do not rush into action here. That may seem odd given the number of years we have been working on it but I detect a sense of—what shall we call it?—tentism springing up. We should not do that without thinking very carefully what we are doing. As was said earlier, there are many different ways of demonstrating and it just seems to happen that tents seem to be the vogue at the moment. What that has to do with modern life, I have no idea.
It is also rather sad, in some senses, that the extraordinary contribution to public life which Brian Haw made before his untimely death has been swept away as something that we are against, even though it is in some ways a peculiarly British way of trying to express a view by a sort of silent protest in the face of all possible opposition. With the whole establishment and everybody against it, he continued to make his point. It may not have been to everybody's liking or as effective as he might have wanted it to be but it was there, it was different and it was distinctive. We should worry if we were to squeeze it out by a rush to some form of arrangement.
We also have to be a bit careful about what is happening here. I have never been of the view that a committee is the answer to the problem that we have, and I am a bit surprised to hear other people saying it. Committees do not really solve many things. We had a rather strange intervention last week from the noble Lord, Lord Ramsbotham, who said that the military would have recommended a committee in this situation. I thought that was a contradiction in terms. The other thing that we have to be careful about is that the evening round of the vehicles under Westminster City Council's jurisdiction will be picking up the tents and other materials, if the noble Lord, Lord Marlesford, is to be believed. That is really a form of theft, is it not? Again, we should be careful before Parliament legislates in that way. There are people who own those things and we cannot act completely without the rights involved in that.
Noble Lords will detect from what I say that I am sympathetic to what is proposed and would like to support it. The problem is that the amendment in its present form has not been subject to sufficient scrutiny. We had a little of that during Second Reading; in particular, the noble Lord, Lord Shipley, raised a number of points which he felt would improve that Bill. An important way to take forward the aims and objectives of the noble Lord, Lord Marlesford, is to have the Committee stage at the right time, to try to go through that Bill and improve it. Unfortunately, the timing would not fit with the present Bill. I do not know how we resolve that but I will come back to it in a minute.
However, it seems to me that there are ways in which the elements that the noble Lord, Lord Marlesford, is putting forward do fit with the intentions of the Government. It would be sensible to try and bolt together the two impulses so that at Third Reading, before the Bill leaves this House, the Minister can bring forward proposals. I note that when she responded to the debate last week, she said of discussions and meetings that:
“Those are ongoing and I do not rule out the possibility of bringing forward further measures before the Bill completes its passage through this House. I do not think I can give more detail at the moment”.
She always says that, doesn’t she? It is a bit irritating, and I hope that this time we can get down to it. She went on,
“but it is certainly a matter under consideration and the talks are ongoing”.—[Official Report, 1/7/11; col. 2014.]
Well, more time has passed and presumably talks have taken place. Now let us hear where they are, as the time as come for us to try to resolve this, at least in the first stage.
We on this side would like to support the intention behind the Bill. In summary, we think that provision would be better incorporated within this Bill and taken forward as one piece of legislation. However, it will need—
Lord Morgan
The noble Lord constantly says, “We on this side believe”. I do not recognise his views as at all representative of me. I have been a member of the Labour Party since 1955 and I see no relation between my long-held opinions and what are supposed to be the views of our Front Bench. I think that our Front Bench should cover itself with a fig leaf of modesty.
Lord Stevenson of Balmacara
I was trying to cover myself with a fig leaf of invisibility—and I will do that now.
Baroness Browning
My Lords, I thank my noble friend for his amendment. Indeed, it was just two weeks ago that we had a more extensive debate on his Private Member’s Bill on this subject. The Government are committed to restoring rights to non-violent protest. They are also committed to ensuring that everyone can enjoy public spaces and do not consider it acceptable for people to camp on Parliament Square. Therefore, we are taking a new approach to the square. Instead of trying to deal with the problem of encampment by criminalising and targeting protests and protestors, what we have brought forward seeks to prevent the disruptive activities that have caused concern—namely, erecting tents and staying overnight with sleeping equipment. We hope that we have done this in a targeted, proportionate and enforceable way that applies to all, not just to protestors.
I stress that the Government wholly appreciate my noble friend’s intentions behind his amendments. We are in complete agreement with the need for a Parliament Square, clear of tents, that can be enjoyed by all. That of course includes those who wish to come to make their views known and to protest. We believe that that should also open up the possibility for those who may want to demonstrate in a peaceful way through all-night vigils—something that is precluded at the moment.
We wholly agree that we need the different enforcement agencies to work closely together to achieve this. We also agree that the square should be a thriving space that accommodates protests by all groups, not just a few. However, I am afraid that my noble friend’s amendments will not achieve that. They risk leading to a significant escalation in confrontation and disorder, which our proposals are crafted to avoid. I cannot see how my noble friend’s proposals will result in anything other than nightly stand-offs between police and council workers on the one side and on the other groups that will disregard the views of the committee that he proposes to put in place.
This is not just government hysteria or hyperbole; this is based on the experience recorded by the courts of wilful disregard for the law by groups such as Democracy Village and a determination by the present encampment to challenge both legally and confrontationally on the ground any attempt to move them or their equipment. Furthermore, even assuming that they could be moved, the net effect for those who use Parliament Square will be no different. After a nightly battle, the tents and other structures would simply be re-erected at 6 am the next day. The square would be clear only when no one was around to witness it. As I understand my noble friend’s amendments, he suggests—and he repeated it in his opening remarks—that council refuse collectors should simply sweep the square at midnight and clear it of detritus. I would like to put it to my noble friend that there may be people attached to that detritus, and there would almost certainly be people inside the tents.
The Government had originally proposed that the powers to use reasonable force in enforcing our provisions should be available to authorised and trained officers of Westminster Council and the GLA. There was widespread Cross-Bench concern in the House at those enforcement powers. The Government listened and have removed those powers from the Bill. My noble friend’s amendments envisage refuse collectors seizing tents and other structures. We do not think that that is appropriate, proportionate or desirable. If that were indeed their responsibility, it would certainly contribute to the nightly scuffles and punch-ups that I have alluded to.
Lord Campbell-Savours
I understand that the ministry has met the council leader, but in his letter he says that the Government’s proposal will not work. He says that it will not fulfil the objectives set by the Government. I cannot imagine what has happened in the conversation with committees and officers of the council meeting to come to that conclusion. What happens if the Bill is enacted as the noble Baroness would want and it turns out as time passes that Westminster City Council is right and the Government are wrong?
Baroness Browning
My Lords, as I have indicated, no one says that this is an easy matter. We have sought to reform the legislation by giving more opportunity for peaceful protest on the square while seeking to remove the problem of the encampments. I have discussed Westminster City Council’s concerns with it, but it is quite clear that it will fully co-operate as partners in this legislation. We continue to discuss that with it. While I understand that Westminster City Council would perhaps have liked us to go further and extend the area that we are considering, given the proportionality concerns raised in this House and another place we have sought to get the balance right. I am assured, and I have no reason to doubt, that Westminster City Council will play its part with other partners such as the parks authorities and the GLA in endeavouring to make this legislation work. If in three or four years’ time noble Lords come back and say, “Well, that didn’t work”, I will be disappointed. However, this is the best way forward: trying to address the problem while maintaining the space outside the House for democratic protest.
Lord Kilclooney
It is great that the Minister met the leader of the city council. Can she now say whether he has changed his position of opposition to what was happening?
Baroness Browning
I think I am correct in saying that when he wrote that letter he was probably extremely concerned and wanted to have more dialogue with my department. That dialogue has taken place and will be ongoing. We will certainly take seriously any concerns of Westminster City Council and any other enforcement agency that will be required to participate in this new legislation, and will continue to work with them. I have in front of me the words that I have expressed about the council. The House will be unsurprised to learn that those words have been agreed with it. I am not saying this off the top of my head. There is a constructive dialogue, and we will seek between us to overcome any concerns that it might have.
Lord Cormack
As it is quite clear that there is real concern in all parts of the House, and, from what my noble friend has just said, continuing concern in Westminster City Council, can she not adopt my suggestion of a little while ago and have further discussions between now and Third Reading with a view to seeing whether these proposals, which many of us feel are deficient, can be improved? This is a real chance to deal with an eyesore that has been here for far too long. We do not want, in three or four years’ time—or even three or four months’ time—to have to say that it is not working.
Baroness Browning
My Lords, I hope I have explained very clearly why the amendments before the House would not address the problem that we are seeking to address. My noble friend asked me to look at this further. We have already made concessions on this legislation to get the balance right, particularly as expressed in this House and another place, and to ensure that it was not overprescriptive for those who want to exercise their democratic right to protest outside this Building. I am not in a position to bring this back at a later stage of the Bill. I hope that noble Lords will examine carefully my concerns about a committee as outlined in the amendments.
Lord De Mauley
My Lords, I respectfully draw the noble Lord’s attention to the rules on Report.
Lord De Mauley
I am sorry but that is not what I am referring to. I am referring to the rule about not speaking more than once to an amendment.
Lord Judd
I thought it was possible to seek clarification from a Minister during their wind-up speech. The point on which I seek clarification is whether it would be wise, at some point, to meet those who organise vigils to suggest to them that counterproductivity in campaigning does not help their cause.
Lord Marlesford
My Lords, I am most grateful to all noble Lords who have taken part in this debate. I never pretended that this was the last word. I am disappointed that the Government feel that their Bill is the last word. I am delighted to hear that the Minister will discuss these matters in more detail with Westminster City Council. I find it a little strange that the letter from which the noble Lord, Lord Campbell-Savours, quoted was written as recently as 21 June. After all, the Government have had this Bill in gestation for many months. If I had been on Westminster City Council, I, too, would have been a little miffed if I appeared to have been ignored.
To answer the noble Lord, Lord Armstrong, and others, the committee will certainly be all-embracing. Whoever should be on it will be on it. It will not have to sit all the time; it will have a, presumably very small, permanent staff—perhaps someone seconded from the Met, someone from Westminster City Council and someone from here who will keep a watching brief for us. I was surprised when the Minister said that she did not know whether the committee would report to her. My amendment says:
“The Committee shall report annually to both Houses of Parliament”.
I do not say that that is necessarily the right idea, but for her to say that I have made no provision for reporting is simply not true. It is in the amendment. My worry is that the Home Office just does not like ideas from outside. It does not even read them; it just rejects them, which is disappointing. Given the Minister’s answer, and to encourage the Government to think a little more, I should like to test the opinion of the House.
Baroness Hamwee
“(2) But an order under subsection (1)(b) may not prohibit a person from entering the controlled area of Parliament Square nor restrict a person’s right lawfully to demonstrate there.”
Baroness Hamwee
We remain in Parliament Square, as it were. Noble Lords will be glad to know that we have now got as far as page 100 in the Bill. Instead of giving the court the power to impose a sanction on an open-ended basis following the conviction of anyone who has committed an offence under the prohibited activities in the controlled area of Parliament Square, the amendment would limit that power and provide that no order may,
“prohibit a person from entering the controlled area of Parliament Square nor restrict a person’s right lawfully to demonstrate there”.
This is a simple proposition, I hope, that was suggested to me by the organisation Justice. It is right that Parliament Square is a public place which, as we have seen, will be well controlled, or better controlled than I would like. As noble Lords are all saying, it is a place where properly organised demonstrations and expressions of opinion are entirely appropriate. It is hard to imagine why it will be necessary to prohibit entry to the square altogether. These provisions will be targeted at demonstrators and it is important to the democratic process, again as noble Lords say, that provisions aimed at preventing setting up camps, in particular, do not have the by-product of silencing protests altogether. Rather than this blanket prohibition the court should properly look at dealing with offences on an offence-by-offence basis, not making an order, which is equivalent to an injunction, for the future. It is almost more akin to convenience than a proper criminal sanction. That is what underlies my amendment.
While I am speaking, I wonder whether I can have a word about two of the government amendments in this group, Amendments 307ZA and 309ZE. The Minister will explain the application of this very old legislation—the Parks Regulation (Amendment) Act 1926. I assume that this is a device to extend certain controls relating to seizure to other areas near to Parliament. What will be given by these provisions are powers to yet another class of official—we have park constables in this legislation. Are we giving powers to unwarranted officers to make seizures? How will that regime fit in with the arrangements to be made for Parliament Square? The legislation refers to a park trading offence, and as I read the existing legislation, that will require some regulation. Perhaps that can be clarified. My concern is that we should not be adding to the confusion by a different regime. As regards Amendment 306C, I beg to move.
Lord Dubs
I should like to speak to Amendment 307 standing in my name. I am a member of the Joint Committee on Human Rights and we spent quite a lot of time considering this Bill. I hope that the Minister will not mind if I go public on a private conversation she and I had some little while ago. I buttonholed the Minister in the Corridor and said that I had an amendment that I was sure she would see to be so sensible that she would give it her support. She looked at me and said, “Yes, that’s what they all say”. I still believe that this is a very helpful amendment.
When we give powers to the police there should be codes of guidance under which the police would operate. There are many precedents for having such codes: I will come to them in a moment. The Bill contains complexities that the police will find it hard to work around. Reference has already been made to structures, sleeping equipment and authorisation for amplification such as loudspeakers. These will be difficult decisions for the police to make—all the more so because I think I am right in saying that one has to get authorisation 21 days in advance for using loudspeakers, but only six days in advance for holding a demo. One has to apply much earlier for the right to use loudspeakers than for the right to demonstrate at all. This is confusing, and it will be difficult for the police to implement.
Baroness Kramer
My Lords, I will ask the Minister for clarification on government Amendment 307ZA. My honourable friend Lady Hamwee referred to this a moment ago. The amendment has appeared for the first time in the Marshalled List on Report. It amends the Royal Parks (Trading) Act 2000. That was an eminently sensible Act. It targeted the renegade burger vans that were invading Hyde Park and gave the police powers to seize the vans and the various paraphernalia. I do not think that anyone has disputed the legislation or the way in which it works. If I read the amendment correctly—I may not have, which is why I seek clarification—it will allow seizure powers to be applied in any instance where a by-law in any Royal Park appears to be violated. That is a huge broadening of powers. As many noble Lords will know, many by-laws affect the Royal Parks. As far as I know, there is no problem that requires a fix—so in a sense this is a solution finding a problem, which itself raises issues.
The noble Lord, Lord Judd, put the point exceedingly well that the issue of democratic protest applies not just to Parliament Square. Many Royal Parks also have a tradition of allowing legal, peaceful demonstration and protest. The fact that there is public access at all to Richmond Park comes from public protest, which has a very long history. I am concerned that in an attempt to tidy up loose ends and provide a more sweeping basis for various powers, we are about to put in a piece of legislation that is not required because there is no problem to solve, and that puts across a problematic message that demonstration needs to be in some way curtailed. I seek reassurance and an explanation of why this appears in the Bill, what its purpose and intent are, and what the legal effect of it will be.
Lord Newton of Braintree
I had not intended to speak in this debate and I ought to confess that—how can I best describe it?—I copped out on the previous debate as I found my noble friend Lord Marlesford and all the other speeches very persuasive until I heard my noble friend from the Front Bench who I thought made some significant points that undermined the possible practicality of that amendment.
This amendment is also designed to modify the Government’s proposals. I say to my noble friend on the Front Bench that it seems to me that we have quite an awkward situation here. Almost no one believes that what the Government have in the Bill will work. Everyone believes that something needs to be done. I was persuaded that my noble friend Lord Marlesford’s amendment was not quite the ticket, so I landed up in the position I have described. Equally, I do not find myself very attracted by the proposition, which my noble friend on the Front Bench implied in her speech, that it might take four years to find out. Well, if it had not worked in four years, she would be disappointed.
The fact is that we are going to know quite soon following the passage of this Bill, if that is what happens, whether it has been effective in achieving the objective we all want, which is a situation in Parliament Square that is consistent with the buildings around it and its world status. I do not seek to persuade my noble friend to concede to the amendment or to put her in a very difficult position, but I would like her to acknowledge that in this debate points have been made by noble Lords, including the noble Lord, Lord Dubs, that need some further consideration. I would welcome an assurance that if what is in the Bill does not work, the Government will continue discussions with a view to coming forward with some other proposition that has a better chance of working in pretty short order.
Baroness Browning
My Lords, I think it was the noble Lord, Lord Stevenson of Balmacara, who, in an earlier debate, suggested that, as far as this part of the Bill relating to Parliament Square is concerned, I said I would reflect and bring things back. That is why government amendments are in this group. I am keeping my word and seeking to make some changes.
Clause 148 empowers the court to make any appropriate order which has the purpose of preventing the defendant engaging in prohibited activities in the controlled area. We want to retain some flexibility for the court to deal with a determined individual who has persistently failed to comply with direction by barring him from the controlled area when it is proportionate and necessary. The noble Lord, Lord Dubs, is seeking to make guidance statutory. The Government are committed to providing the necessary guidance and support but consider that there is nothing to be gained by making the guidance statutory, which could risk interfering in operational capabilities. I will explain why. Statutory guidance is frequently more restricted and concise, lacking the practical examples and case studies that are often present in non-statutory guidance. This means that statutory guidance can end up being less helpful than non-statutory guidance. If action is challenged, the courts will have a look at any type of government-approved guidance, statutory or non-statutory, in considering the lawfulness of the action. The practical impact of making guidance statutory would be limited but the usefulness of the guidance could be reduced. That is probably because we can all envisage a series of scenarios that might apply in this instance. It would be very difficult to capture them all in statutory guidance. In this case, it is believed that non-statutory guidance would be more helpful if these cases were ever tested in the court. However, the noble Lord’s amendment provides a helpful template for the areas and issues which our non-statutory guidance will cover. I thank him for that.
I now turn to the government amendments. As I stated in Committee, we want to ensure that the area in which the new regime applies is as small as possible so that it targets the problem of the unique situation of Parliament Square without extending any further than necessary. We recognise the concerns of some that the controlled area is too small and that the effect of these measures could be to displace disruptive activities to footways beyond the controlled area. That is why we have been working with Westminster City Council and the GLA to ensure that relevant by-laws are strengthened to deal with disruptive activity in the wider area.
In consultation with the House authorities, it has become clear that additional provision is needed for other areas around Parliament Square not covered by Westminster City Council or Greater London Authority by-laws but which are covered by Royal Parks regulations; for example, the lawn area around the statue of George V, and Victoria Tower Gardens. Therefore, these amendments make provision for a power of seizure to be attached to Royal Parks regulations to support the position we have taken for effective enforcement of GLA and Westminster City Council by-laws. These amendments have the support of the House authorities and are in line with the proportionate and targeted approach we are taking in the Bill to deal with disruption in and around the square.
Lord Cormack
I was at odds with my noble friend in the previous debate. I would like to thank her—on behalf, I am sure, of many Members in all parts of this House—for what she has just said about the area around the statue of George V and the other areas.
Baroness Browning
I am glad to have reassured my noble friend. I will pick up on a couple of points raised in the debate. My noble friend Lady Hamwee talked about powers for parks regulations. These powers will be exercised by the Metropolitan Police as it has a distinct Royal Parks operational command unit.
My noble friend Lady Kramer also asked about other parks that might be affected by these amendments. The amendments are an enabling power only. They enable DCMS, when making Royal Parks regulations, to apply a power of seizure to any, all or some of the Royal Parks regulations. This comes back to the fact that these reforms are very much focused on the power of seizure. In turn, the Royal Parks regulations apply to a specified list of parks which include Hyde Park, Victoria Tower Gardens, Hampton Court Gardens and Richmond Park, to name but a few. It would be open to DCMS to apply a power of seizure to any, all or some of the parks in that list. I hope that is helpful to my noble friend but if she has any particular concerns about the read-across of this to any park she is interested in, I would be very happy to discuss it with her or let her have fuller information in writing.
These amendments are a targeted approach synonymous with what we have set out to achieve in this Bill to deal with disruption in and around the square. Before I move them, I will just touch on the fact that my noble friend Lord Newton of Braintree said that in an earlier debate I had mentioned “four years”. I just said that off the top of my head. Perhaps I should stick to the official brief. I always get into trouble when I go off-piste. I could easily have said six months, a year, 18 months, whatever.
What I was really trying to convey to the House is that we believe that we have a proportionate and sensible proposal to go forward to deal with this long-standing problem. I am not going to be daft enough to say, “Problem solved, my Lords”, and have everyone come back to me in two or four years. We think this is our best effort. It has the support of those who are going to enforce it and they will work together to make it happen. We are hopeful that our endeavours will resolve this problem, but it is not realistic to expect me to say what the timescale will be. My noble friend has known me long enough, and indeed I remember the time when he was a Minister and I was on the Back Benches asking him awkward questions. He knows that we will do our best, and I do not think we can be expected to do more.
Baroness Hamwee
My Lords, the Minister has argued for giving the court more flexibility than I think is appropriate in the circumstances. It amounts in effect to precluding a demonstrator in advance. But clearly I am not going to be able to persuade her.
On the government amendments, I should say that I am left with a considerable feeling of unease. I asked who would exercise the powers and the Minister has explained that it would be the Royal Parks Police, so we have yet another player in the mix. But that troubles me much less than what I suspected might be the case, which is that these new provisions could extend powers to any of the Royal Parks. I have to say to my noble friend that it is a great pity—actually, it is quite troubling—that these provisions are being brought before the House under the heading, as it were, of Parliament Square when we have been talking about the environs of Parliament. We are being asked at this stage to agree changes to legislation which clearly could be far more wide-reaching geographically than most noble Lords would have assumed. I wonder whether I can invite my noble friend, either at this stage or through some device at Third Reading, to give assurances that the Government will not use these provisions more extensively than the environs of Parliament. As I say, I think that that is what noble Lords were expecting. I do not know whether she is in a position to respond, but we do have more stages to come.
Baroness Browning
We are on the last day of Report and I cannot commit at this stage to bring this back formally at Third Reading. However, I am happy to engage in discussions with my noble friend on the points she has raised.
Baroness Hamwee
I am grateful to the Minister and I certainly will want to take up that offer. I beg leave to withdraw the amendment.
“Guidance issued under this Part
(1) The Secretary of State shall issue guidance on—
(a) prohibited activities under section 145;(b) directions under section 145(1);(c) seizure and retention of property under section 147;(d) authorisations for the operation of amplified noise equipment under section 149.(2) Guidance issued under subsection (1)(a) shall include—
(a) further details defining the terms—(i) “structure that is designed, or adapted, (solely or mainly) for the purpose of facilitating sleeping or staying in a place for any period”,(ii) “sleeping equipment”,(iii) “the purpose of sleeping or staying in that area”, and(iv) “the purpose of sleeping overnight”;(b) guidance about the treatment of amplified noise equipment used by disabled persons for the purposes of communication.(3) Guidance issued under subsection (1)(b) shall include provision about—
(a) the circumstances in which a direction under section 145(1) may be made;(b) the form of any direction given under section 145(1), in particular—(i) the circumstances when a direction or the variation of a direction must be in writing;(ii) the arrangements for the identification of a constable or authorised officer making a direction or variation of a direction;(iii) the appropriate duration of any direction or variation of a direction; and(iv) the requirements for notice and communication of a direction or a variation of a direction to the person or persons subject to such a direction.(4) Guidance issued under subsection (1)(c) shall include provision about the circumstances in which the powers under section 147(1) shall be exercised, in particular—
(a) the identification and notification of the owner of any relevant prohibited item; and(b) the use of force by constables under section 147(4).(5) Guidance issued under subsection (1)(d) shall include provision about—
(a) the criteria for withholding authorisation; (b) any exemptions from authorisation for equipment used by disabled persons for the purposes of communication;(c) the conditions which may be imposed by the responsible authority in connection with any authorisation;(d) the target timetables for processing applications for authorisation (including fast-track procedures for priority authorisation);(e) the form and manner of—(i) the application for authorisation,(ii) the notice of authorisation, and(iii) the notice of variation of any authorisation;(f) the maximum fee to be paid for determining any application.(6) Before issuing guidance under this section the Secretary of State must—
(a) publish a draft of the proposed guidance; and(b) conduct a public consultation on the draft guidance.(7) In preparing draft guidance, the Secretary of State must, in particular, consult—
(a) the metropolitan police force;(b) the Greater London Authority;(c) Westminster City Council; and(d) the Director of Public Prosecutions.(8) Guidance issued under this section must be made by statutory instrument and is subject to annulment in pursuance of a resolution of either House of Parliament.”
Baroness Browning
“(A1) In section 2 of the Parks Regulation (Amendment) Act 1926 (power to make regulations), after subsection (1) insert—
“(1A) Regulations under subsection (1) may include provision applying (with any necessary modifications) sections 4 to 6 of the Royal Parks (Trading) Act 2000 (seizure, retention, disposal and forfeiture of property) in relation to offences under that subsection that are not park trading offences for the purposes of that Act.””
Baroness Meacher
Baroness Meacher
I rise to move Amendment 307ZB and to speak to Amendments 307ZC and 307ZE, which together seek to provide some flexibility for the Government in deciding how best to regulate the use and supply of so-called legal highs. The noble Lord, Lord Norton, has asked me to inform the House that he had requested the Public Bill Office to add his name to these amendments, and the absence of his name from the Marshalled List is purely an administrative error. These amendments are similar, although not identical, to those tabled in Committee. They now refer to the medicines Acts, consumer protection and advertising standards legislation, all of which provide legislative frameworks within which it would be possible for legal highs to be controlled.
As the Minister knows, I am not seeking to tie the hands of the Government—quite the opposite. A great deal of work needs to be done, and indeed is being done, to explore the best ways to control these substances. What I am seeking is flexibility in this legislation so that when the analysis of the various legislative frameworks and their potential application in this field has been completed, the controls could be put in place without waiting for further legislation. We all know how long that can take.
I am anxious that the Government avoid a repeat of the mistakes of the past. In Committee, I set out briefly the appalling consequences of the war on drugs, which has been pursued by this country and across the world for 50 years. From the Global Commission on Drug Policy report, we know that a rapidly growing number of highly respected world leaders and opinion formers now recognise that we need to end the criminalisation of young people and focus on evidence-based, health-oriented policies. The amendments are consistent with the growing policy consensus across the globe.
On the thrust of my amendments, we know that some of the substances referred to as legal highs are potentially very dangerous to the health of young people. We also suspect that other substances may be less dangerous than cigarettes and alcohol. It would be most unhelpful if these substances were to be dealt with in the same way. It would be particularly unhelpful if they were dealt with under the Misuse of Drugs Act 1971, which, as your Lordships know, criminalises users as well as suppliers. As the Bill stands, that is the assumption, albeit that under the temporary ban in the initial stages users will not be targeted. The assumption is that, if these substances are brought under the Misuse of Drugs Act, users will inevitably be targeted over time, as they are under that Act in respect of other drugs.
I welcome the Government’s focus on treatment of problem drug use. This focus makes it clear that the Government accept that it is a health problem—certainly, drug abuse is. On this assumption, the priority for us all in developing drugs policy is to try to ensure that young people avoid the substances and the associated health problems if at all possible. This means having clear messages about the relative risk of different substances and the provision of health treatment as well as social support for all those who need it.
I welcomed the Minister’s comments on the amendment of the noble Baroness, Lady Finlay, where she talked about the importance of a rounded and holistic approach to drug addiction. The Minister referred to different departments being brought together to provide that support. As the Minister knows, I have drawn attention to the Swiss model, which, instead of trying to get a whole lot of different departments to work together, which we know is extraordinarily difficult, brings all those services under a single umbrella, providing an extraordinarily effective service—health and social support, benefits and the rest of it—so that they achieve a two-thirds success rate over 18 months.
As important as all that is the separation of the markets for these legal highs between the markets for the really dangerous substances and those for substances which are much less dangerous. That is the fundamental point of my amendment. If there is a single market and a single set of traffickers, young and vulnerable people move inevitably from one drug to another.
On giving clear messages about the relative risks of different drugs, we know that the classification system of the Misuse of Drugs Act does not work. When cannabis was moved from class B to class C and back again from class C to class B, the trends in the use of cannabis did not change very much—the fact is, young people do not really understand the classification system. By contrast, the tobacco controls have been really rather effective over time. Tobacco and alcohol are just two substances controlled outside the Misuse of Drugs Act. There is no reason why substances should be controlled under that legislation. Solvents are controlled through the Intoxicating Substances (Supply) Act; medicines legislation has been used in a number of countries for controlling methadrone—for example, in the Netherlands and Finland—and for controlling Spice in Austria.
The controls referred to in my amendments could allow the authorities to direct users towards relatively less harmful substances as substitutes for the much more harmful ones. They also provide an opportunity to introduce controls that are not feasible under the Misuse of Drugs Act, including age restrictions, controls on marketing and packaging and requirements that substances are sold with information on dosage levels and adverse effects. All of that would be extraordinarily helpful for vulnerable young people. Sale could be limited to a relatively small number of establishments, unlike the liberal policy we have for alcohol and tobacco.
Controls are not by any means the whole story; we want prevention, too. The best preventive measures include sensitive support in school, or in other venues where young people congregate, for children who are readily identified as underperforming, alienated and unhappy. These are the children at risk of being enticed into the taking of synthetic drugs and who, once enticed, will be vulnerable to a dependence on those drugs. If they fall into the drug addiction trap, the most destructive response to these vulnerable young children is to criminalise them. As they say, you can recover from drug addiction but you can never recover from a criminal conviction. With a criminal conviction, the child’s life is in pieces; family, friends, education and hope of employment are all in tatters. It is for these reasons that I implore the Minister to do all that she can to ensure that the regulation of legal highs is undertaken in such a way as to avoid criminalising children and young people if at all possible.
If we are now too late to take this action within the Bill, I would be greatly encouraged if the Minister could give the House her assurance that she will be asking her officials to begin work without delay on the necessary legislation to achieve these objectives. I beg to move.
Lord Judd
My Lords, I congratulate the noble Baroness on having brought back these amendments on Report. I hope the Minister will be able to give a sympathetic and positive response.
I was impressed by what the Minister said in a previous debate today—there was a great deal of personal conviction behind what she said—and her insistence on the importance of not only treatment but of cure. If that applies as a governing principle in the sphere of alcohol abuse and the much more serious social consequences that that has, why not have the same approach at the centre of the Government’s policy on drugs?
If we are to get the response to drugs right—the noble Baroness was right to emphasise this—two principles are absolutely essential. First, any action which is taken should be based not on emotion, instinct or control concern but on evidence-based outcomes of thorough research. Any moves or legislative arrangements that are not properly researched can do far more harm than good. That is the first point.
The second, absolutely crucial, point is the one made by the noble Baroness about criminalisation. One certain way to make it more difficult to rescue the young from drug addiction is this excessive tendency towards their criminalisation. We have to realise that it is not a soft approach but a hard-headed one. Very often drug addiction is a symptom of victimisation: the drug takers are often victims themselves in one way or another. I am greatly impressed by the increasing amount of research which is now being undertaken which suggests that the most important factor in leading young people and others into drug abuse is the environment, social conditions and so on of which they find themselves a part.
The Minister rightly referred to culture and about wanting to change it. I have a tremendous sense of awe at the responsibilities faced by the Home Office in so many spheres. Many good and dedicated people work in the Home Office but it would be right to adopt a cultural approach there which puts rehabilitation and not only control at the top of the agenda. I am afraid that the proposals in the Bill before us do not make it absolutely clear that the rehabilitation argument, and the resistance to taking action which drives people further into the problem, should prevail.
Baroness Browning
My Lords, I commend the noble Baroness, Lady Meacher, for ensuring that we keep an open mind and consider all options available to best respond to the threat of new psychoactive substances—sometimes referred to as legal highs—which are specifically designed to get around existing legislation.
As I explained in Committee, the temporary class drug orders will constitute a UK legislative response that is appropriate to the immediate threat that a new drug poses while its nature is still in question. As the noble Baroness is aware, some of these new substances present harms equivalent to those from class A and class B drug use. In these circumstances, the appropriate response is to disrupt the supply chain and protect the public as a priority while giving the Advisory Council on the Misuse of Drugs time to consider evidence of a drug and its harms. The proposals before the House will help us achieve that aim. Of course, our response to both the general issue and individual new substances must be both preventive and proportionate.
These amendments seek to ensure that the Government amend and consider alternative legislation to tackle the threat of new psychoactive substances, alongside control under the Misuse of Drugs Act 1971. We are keen to see all existing legislation used to curb the availability of these substances, though not as a substitute regime for harmful drugs whose proper place is under control under the 1971 Act. The UK needs a legislative response that is appropriate to the immediate threat that a new drug poses when there is evidence that its harms are commensurate with class A or class B drug use. Temporary class drug orders will provide a preventive and proportionate response to the threat posed by disrupting the supply chain and protecting the public as a priority while giving the ACMD time to assess the drug and its harms.
On the point made by the noble Lord, Lord Judd, the noble Baroness will of course be aware that in bringing in these temporary orders while a substance is evaluated, we are not in any way criminalising the user. I also draw noble Lords’ attention to Section 1(2) of the 1971 Act by which the Advisory Council on the Misuse of Drugs already has the remit to provide,
“advice on measures (whether or not involving alteration of law) which in the opinion of the Council ought to be taken for preventing the misuse of such drugs”.
We will not prejudge the advice that the ACMD is preparing, including its thematic advice on new psychoactive substances.
On government Amendments 307C and 307D, the Government have always been committed to proper scrutiny of our drugs laws. We accept the recommendation of this House’s Delegated Powers and Regulatory Reform Committee that the affirmative procedure is preferred while still enabling us to take swift action against the threat of a new psychoactive substance throughout the year. The advice sometimes comes forward very quickly and there are periods when the House is in long Recess through the summer. The amendments take account of the concerns of the House’s committee but at the same time ensure that we are not tardy with the harms that we are notified of by the ACMD. To remain in force, a temporary class drug order will need to have been approved in both Houses within 40 sitting days.
I am sorry that I cannot accept the noble Baroness’s amendments. I would be very concerned that we would potentially deal with psychoactive substances which would ultimately fall within the class A or class B category. Notwithstanding that, it is up to the ACMD to offer the Government alternative advice as to other routes if it felt that was appropriate. On that basis, I ask the noble Lords to withdraw their amendments.
Baroness Meacher
I am grateful for the Minister’s response. I am not at all clear how she envisages the less dangerous substances should be regulated. I am not at all clear that this can be done under current legislation other than through the Misuse of Drugs Act. That is the concern reflected in these amendments. I believe that there is no alternative as the Bill stands, so I wonder whether the Minister could respond to that point.
Baroness Browning
I am very happy to write to the noble Baroness. As I explained, the ACMD in making its recommendations to the Government is able to indicate any routes that it thinks that the Government should take. I am very happy to explore that with her. We are awaiting a report from the ACMD on these new psychoactive substances, and it may well be that that will inform the Government better as to the range of options available to us.
Baroness Meacher
I thank the Minister for that response. My understanding is that in fact there will be a need for further legislation and it is my concern that the Government do all they can to take steps to prepare for that so that there is no gap or delay before these substances can be appropriately controlled through regulatory mechanisms other than the Misuse of Drugs Act. But with that point made, I beg leave to withdraw my amendment.
Baroness Browning
(a) is subject to subsection (10), and(b) ”
“(10) An order under this section—
(a) must be laid before Parliament after being made, and(b) ceases to have effect at the end of the period of 40 days beginning with the day on which the order is made unless before the end of that period the order is approved by a resolution of each House of Parliament.(11) In calculating that period of 40 days no account is to be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than 4 days.
(12) Subsection (10)(b)—
(a) is without prejudice to anything previously done or to the power of the Secretary of State to make a new order under this section;(b) does not apply to an order that only revokes a previous order under this section.”
Lord Ramsbotham
Lord Ramsbotham
My Lords, I must apologise to the House for not being able to be in the Chamber when I could have moved this amendment in Committee. The Explanatory Notes state that the purpose of the two subsections in the clause is to amend Schedule 1 to the Misuse of Drugs Act 1971 by removing the requirement on the Secretary of State to appoint to the Advisory Council on the Misuse of Drugs at least one person with wide and recent experience in each of six specified activities—medicine, dentistry, veterinary medicine, pharmacy, the pharmaceutical industry and chemistry—and persons with wide and recent experience of social problems connected with drugs.
I have to admit that to me the proposal to remove this requirement defies common sense and logic. It is hard to think of any better summary of the expertise that should be co-opted on to the Advisory Council on the Misuse of Drugs so that it is available to the Secretary of State and Ministers responsible for dealing with a major social problem. That is the immediate and narrow reason for moving my amendment, but there is a wider reason concerning the Misuse of Drugs Act 1971 itself, legislation that is now 40 years old and regarded by many who work in the field as being outdated and in need of urgent repair. Much of what I shall say now complements the amendments moved by my noble friend Lady Meacher.
The Act was introduced to replace a more liberal legal framework and to reflect United Nations treaties such as the Single Convention on Narcotic Drugs of 1961 and the developing US-led war on drugs. The debate on drugs laws has moved on since then, and questions have been raised as to the efficacy of the approach of the war on drugs, so it seems timely to revisit a law that was made in a very different climate.
The 1971 Act established the drug classification system as a basis on which to set levels of offence and punishment for possessing, supplying and using premises in relation to controlled drugs. The advisory council was established to provide scientific evidence of the harm done by each substance to enable Ministers to classify it on a scale of harm. However, the scientific basis of drugs classification has since been challenged and the fact that alcohol and tobacco, which score high on the level of harm that they do to people and society, are not included on the list of controlled drugs has been cited as evidence that social and political considerations influence policy-makers as much as scientific evidence. The proliferation of internet sales has also raised questions about the Government's ability to classify all drugs and the value of doing so when they can easily be adapted.
Criminalising the possession and use of drugs does not bring down crime or offending rates. On the contrary, it feeds them. Drug and alcohol dependency is a health problem, not a crime. Other than taking punitive action against dealers, drug-related crime is better dealt with by supporting recovery and tackling the interconnected problems that have contributed to drug misuse. Treating drugs as a health matter rather than a crime helps to reduce a range of harm to individuals, families and communities. That is at the heart of proposals in the Rehabilitation Revolution—the subject of the Ministry of Justice’s Legal Aid, Sentencing and Punishment of Offenders Bill. Drug misuse is closely associated with mental health problems and is often a response to other problems in a person's life, for which they cannot be held responsible, such as childhood neglect. To reflect this, there are clauses in the Department of Health’s Health and Social Care Bill and the Department for Work and Pensions’ Welfare Reform Bill on the treatment of misusers.
I mention all these to draw attention to the fact that the misuse of drugs is currently part of four separate Bills tabled by four separate ministries, all based on an out of date Act. It seems to have become a custom that, instead of producing single-issue Bills—such as the admirable one tabled by the noble Lord, Lord Marlesford, which we have just debated—ministries now table multi-issue monsters that dabble with a number of issues, rather than tackling one in detail. I submit to the Minister that, acknowledging that the reform of the Misuse of Drugs Act 1971 is essentially Home Office business, reform might be better done by tabling one Bill to revive that Act rather than via a variety of clauses in a variety of Bills tabled by a variety of ministries.
I therefore hope that the noble Baroness will feel able to accept my amendment in the spirit in which it is meant—not least in the interests of retaining the best advice, which will be essential in any reform process—and give the House an undertaking that urgent consideration will be given to both the reform of the 1971 Act and membership of the advisory council. I beg to move.
Baroness Browning
My Lords, the noble Lord will know that reform of the Misuse of Drugs Act is not in the Bill as a proposal, and I am not really in a position to be able to respond to him on his amendment today. Clearly, however, if there was a need to reform the Act itself, the Government would always be receptive to hearing the views that are being put forward on that, so while I have noted what he said about overall reform of the Act we would naturally need to have advice from wider quarters as well. I hope he will accept that I have heard and noted what he has said on that.
As for this amendment and its aim to retain the existing statutory nature of specified areas of expertise in the ACMD’s membership under the Misuse of Drugs Act 1971, the Government take a view that placing one area of expertise on a greater footing than others brings into question the need for the latter. Our proposals therefore place all ACMD members on an equal footing. We want to make the best use of our independent experts, the ACMD, in this challenging area of government policy. The scientific community was consulted about our proposal, which will give the ACMD's membership the flexibility to adapt to the modern challenges of the drug landscape. We have the full support of the Advisory Council on the Misuse of Drugs, with which we have developed a broader non-statutory list of expertise from which the ACMD’s membership will be predominantly drawn. This list is contained in the draft working protocol that was laid in the House Library on 1 April. It includes all six groups of expertise that are currently statutory.
The working protocol also sets out the future involvement of the ACMD in recruiting new members and the process by which we will secure the relevant expertise that is needed. It may be interest the House to know that we have received broad support for the change and our intent is to have non-statutory lists of expertise from the Academy of Medical Sciences, the British Academy, the British Society of Criminology, the Royal Pharmaceutical Society, the British Pharmacological Society and the Royal Society of Medicine, and the Science and Technology Committees of both Houses were also consulted. The committee of the noble Lord, Lord Krebs, welcomed the added flexibility to the ACMD’s membership.
The Government and the ACMD are prepared to be held to account on the terms of the protocol, so a final version will be laid in the Libraries of both Houses. I am not sure whether the noble Lord, Lord Ramsbotham, has had an opportunity to study that protocol and its proposals, but I hope that he will have taken reassurance from the wide scientific body that has supported the Government in these measures. On that basis, I ask him to withdraw the amendment.
Lord Ramsbotham
I am grateful to the Minister for her reply. Of course I accept what she says about the 1971 Act, and I admit that it would probably have been more appropriate to have raised the matter in Committee, if I had been able, rather than to leave it until this late stage. However, I am much reassured by the welcome she has given to possible suggestions about the renewal of the Act because I know that a number of people would like to put this forward. It is rather difficult at the moment to decide who should do so, as so many different aspects are being raised in different Bills. Perhaps this is something that we could discuss and then decide how it might be done
On the membership of the advisory council, I was not aware of the protocol and I have not seen it. However, I am much reassured that it exists and I am encouraged by the support for it, which the Minister described. I look forward to seeing it, and in that spirit I beg leave to withdraw the amendment.
Lord Thomas of Gresford
“(4AA) The Director of Public Prosecutions shall give consent if—
(a) the evidence establishes a realistic prospect of conviction and the prosecution would be in the public interest, or (b) the evidence raises a reasonable suspicion that an offence has been committed and that the suspect committed it, and the Director of Public Prosecutions is satisfied that there are reasonable grounds for believing that a continuing investigation will provide further evidence, within a reasonable period of time, so that all the evidence taken together is capable of establishing a realistic prospect of conviction.(4AB) In the case of consent granted under subsection (4AA)(b), the Director of Public Prosecutions shall keep that case under review, so that if evidence establishing a realistic prospect of conviction is not available within a reasonable period, the Director of Public Prosecutions shall take over and discontinue the case.”
Lord Thomas of Gresford
My Lords, I beg leave to move this amendment standing in my name and that of my noble friend Lord Macdonald, who like so many of us was here until late last night but is unavoidably abroad today.
Clause 155 is of importance as it ousts a long-held and apparently unfettered right of the private citizen to seek an arrest warrant, particularly in relation to offences of universal jurisdiction. For our part, we agree with the thrust of the change that has been made. As the prosecution of offences of universal jurisdiction—for example, war crimes—has always required law officer consent before a plea is entered in the court, why not require the Director of Public Prosecutions to consent on the same test before the process may be commenced at all? The alternative is the possibility that a case may proceed in the absence of any likelihood of law officer consent being forthcoming. It is a hopeless case. In that case, the prosecution will inevitably and quickly collapse when the consent of the law officers is withheld. It will have been nonsense from the start. That is most undesirable in such cases, which may have sensitive international connotations.
It seems to me that to require the prior consent of the Director of Public Prosecutions, as the clause does, merely creates an additional safeguard at no markedly adverse cost to justice. It has to be recognised that the proposal represents an inroad into the right of the citizen, unrestricted and unfettered, to seek arrest warrants, so it is particularly important, if this is an inroad, that the tests that the Director of Public Prosecutions will apply in considering the grant or the withholding of consent are crystal clear to the public, who to an extent are losing a right of unfettered access to the court. The purpose of the amendment is to achieve that clarity by putting those tests into the Bill.
What are the tests set out in the amendment? They are the tests that are used by Crown prosecutors in considering whether to charge individuals with criminal offences. This is appropriate because in a private prosecution the issuing of a warrant is analogous to the charging process in a conventional state prosecution. It is the actual issuing of the warrant that sets the ball rolling and puts the defendant under the jurisdiction of the court.
The full code test requires the prosecutor to consider whether the evidence before him raises a realistic prospect of conviction—in other words, that a reasonable tribunal would be more likely than not to convict upon that evidence. If the answer to that question is yes, there is a reasonable prospect of conviction and the prosecution would be in the public interest, a charge must follow.
The second test that is set out in the amendment is known as the threshold test. That is to be used in circumstances in which a prosecutor has enough material to suspect an individual of an offence and a real expectation that material satisfying the full code test will become available within a reasonable period. Noble Lords who were in Committee will recall that the former Attorney-General, the noble and learned Lord, Lord Goldsmith, suggested that the public interest test should come in at that stage. In fact, that is not the case in ordinary prosecutions in this country.
The Director of Public Prosecutions, Mr Keir Starmer, has said in evidence to the Public Bill Committee that he believes these tests, which are normally used in this country for granting consent to the issue of a warrant where universal jurisdiction offences are alleged, to be the appropriate tests. There was some issue in Committee about what he had actually said on this topic in the evidence that he gave to the Public Bill Committee. I quote a paragraph from that evidence:
“Quite rightly, a number of groups and individuals have said to us, ‘We may have practically everything. We just need to change the nature of the evidence and it won’t take long. You surely wouldn’t refuse us consent on that basis?’ So we have an exception that allows us to apply the threshold test—is there enough for reasonable suspicion and do we anticipate that, within a reasonable period, the evidential gap, as it were, could be plugged? There would then be sufficient evidence for a realistic prospect of conviction. That prompts the question, what is a reasonable period? It seems to us that it is probably best measured in the period between the application for arrest and the likely time that the Attorney-General will consider consent, because that is the existing window. That is the only period that can sensibly be used for that purpose”.—[Official Report, Commons, Police Reform and Social Responsibility Bill Committee, 20/1/11; col. 125.]
In Committee, my noble friend Lord Carlile of Berriew asked whether my noble friend Lord Macdonald had consulted Mr Starmer before he put down this amendment. The answer is yes, he had. Since the proceedings in Committee, my noble friend Lord Macdonald has spoken further to Mr Starmer about the matter and has received an indication from the Director of Public Prosecutions that he may convey to the House that the position he expressed in his evidence remains his position. Those are the tests, as set out in the amendment, that he would apply in considering consent to any application for a warrant in a case of universal jurisdiction.
Lord Carlile of Berriew
Will my noble friend be kind enough to confirm that the Director of Public Prosecutions has not indicated his assent to this amendment?
Lord Thomas of Gresford
If my learned noble friend will control himself for a moment, I shall come to that question in due course. Mr Starmer has indicated that he would wish to apply a public interest filter to both the tests that are set out in the amendment. Unlike an ordinary prosecution, Mr Starmer would wish to consider the public interest question on the threshold test as well as the full code test. His view is, of course, accepted.
Lord Carlile of Berriew
I am sorry but that is not good enough. Will my noble friend now answer my question? He has left hanging in the air the possibility that the Director of Public Prosecutions has indicated his agreement to this amendment. Is that true or untrue? I believe that it is untrue. The implication should not be left hanging in the air. Perhaps my noble friend will bear in mind that I am exercising more self-control than his last few sentences possibly justify.
Lord Thomas of Gresford
I must admit, my noble friend has always been known for his self-control. We have known each other for 30 or 40 years. The simple answer to his question is that, as I explained a moment ago, the Director of Public Prosecutions wishes to include in the guidance that he proposes to give the public interest test, at the first part, in considering the threshold test. He has said that binding guidance to that effect—
Lord Soley
I do not understand that. I want to know—it is important—whether the answer is yes or no.
Lord Thomas of Gresford
The answer is no; it is obvious. That is why I do not propose to press this amendment to a Division. It is as simple as that. That is what I was about to say. The Director of Public Prosecutions has indicated that his views will find their way into the Code for Crown Prosecutors once the legislation has been passed. We are content with that. Failure by Crown prosecutors to follow the code renders their decision-making susceptible to potential challenge by judicial review. I repeat, to make myself completely clear: I do not propose to press this matter to a Division. However, I am interested in the Minister’s response on this important, and clearly slightly divisive, question. I beg to move.
Lord Pannick
If nobody else wishes to speak on this matter, I certainly will. I was very pleased to hear from the noble Lord, Lord Thomas of Gresford, that he and the noble Lord, Lord Macdonald of River Glaven, agree with the thrust of Clause 155. As he stated, it is absurd to allow for an arrest warrant to be issued without the consent of the DPP when a private prosecution cannot proceed without the express consent of the Attorney-General. I oppose Amendment 308A. Its purport would be to include in the legislation criteria that would tell the director how to exercise his discretion in giving consent to the issue of an arrest warrant. As we have just heard as a result of the cross-examination techniques of the noble Lord, Lord Carlile, it is clear—as I understand the noble Lord, Lord Thomas—that the Director of Public Prosecutions does not wish to see his discretion confined in the legislation.
Baroness Scotland of Asthal
My Lords, I say for the sake of completeness that I concur with the submissions just made by the noble Lord, Lord Pannick, and particularly endorse his sentiments about the importance that where offences of this nature are identified, they should be prosecuted with vigour and rigour and that those who have committed such heinous offences should most certainly be brought to book.
I was somewhat perplexed by the amendment moved by the noble Lord, Lord Macdonald, and supported by the noble Lord and the noble Baroness for this reason. I agree with the legal analysis of the flaws identified so cogently by the noble Lord, Lord Pannick. I was surprised to find those flaws in an amendment drafted by lawyers of the eminence of the noble Lord, Lord Macdonald and the noble Lord. The errant drafting of the amendment has given us a cogent reason why the matter should be left to the current Attorney-General and Director of Public Prosecutions.
For completeness, I have confidence in the current Director of Public Prosecutions, Keir Starmer QC, to discharge his duty with commendable precision. I have equal confidence in the current Attorney-General and Solicitor-General that they, like their predecessors before me, will discharge their duty with distinction and propriety. I have every confidence that each of them, irrespective of political complexion, can be safely entrusted to discharge the heavy burden of exercising their discretion in those cases and that no further amendments should be made to inhibit them from doing that which must be right in cases of this severity. I am glad that the consensus now appears to be that the gap which was so carefully identified by the Director of Public Prosecutions in his evidence should be closed.
Lord Palmer of Childs Hill
My Lords, I rise rather hesitantly, because I feel intimidated in talking in this debate, which seems to be populated by QCs. I am neither a QC nor a lawyer. I rise to give a more layman's viewpoint on behalf of those, like me, who are not adept in the intricacies of the law.
No one on any side of this debate is trying to stop universal jurisdiction for the prosecution of suspected war criminals. That must be stated clearly. However, as the noble Lord, Lord Pannick, said, the amendment is unnecessary and, I would say, even unhelpful. As many noble Lords will know, the usual course at the moment is that the police investigate and pass a file to the Crown Prosecution Service if they believe that such an offence has occurred, if there is a realistic chance of conviction and, as noble Lords have said, if it is in the public interest.
I read Hansard carefully after the previous debate—that is why I was inhibited by the cabal of QCs who were speaking—and I particularly noted the comments of the noble and learned Lord, Lord Goldsmith, whom I know cannot be here today but who has intimated that he is against the amendment left on the Marshalled List. He said in Committee that,
“there are two elements in the code for Crown prosecutors. One is the test as to the adequacy of the evidence and the second is the public interest. Both have to be satisfied before a prosecution takes place”.—[Official Report, 16/6/11; cols. 1008-9.]
For non-lawyers, it is perhaps useful to say so.
Comment has been made about the current Director of Public Prosecutions, who is universally admired. Those who have inquired of Mr Starmer have been given reassurance that, if extra resources are needed to pursue prosecutions, they will be there. If people who are at the moment going to the magistrates’ court to seek a private prosecution, in advance of the alleged criminal coming to this country, were to give that evidence to the Crown Prosecution Service, the CPS would investigate the case before that person then comes to this country. That seems to me pretty good.
I particularly disagree with the amendment—and the noble Lord, Lord Pannick, touched on this—because the DPP does not need to be told, as it says in the amendment, that he “shall give consent”. I hope noble Lords have confidence, as I have, in the Directors of Public Prosecutions, both past and present, so to do. I am slightly dismayed that the noble Lord, Lord Macdonald, was unable to be with us in Committee and, for obvious reasons, cannot be here today. He was also a Director of Public Prosecutions and it is very important to know what he would say.
It is worth mentioning the difference with a private prosecution, via an arrest warrant in a magistrates’ court, where a much lower prima facie case needs to be made. The magistrate is shown the alleged evidence but that court does not have the facilities to investigate that case in more than a superficial manner. The arrest warrant could then be issued if the paperwork looks good—it is only paperwork. The alleged criminal is not informed. No basic defence can be submitted and, if that person comes to this country, under that arrest warrant he could be put in jail for a couple of nights while the DPP decides whether to prosecute. Many people believe that in the many cases that come forward, for one reason or another, they would not have involved a prosecution. The tests used by the magistrate amount to,
“little more than asking whether the papers disclose an arguable case”—
I take that comment from legal advice given in an article that has just recently been written.
This has not been mentioned by other speakers but I would go on to the practicalities. Can it be right that people who have served in their countries—whichever country—as, say, a Defence Minister, Foreign Minister or a member of the armed forces and who are no longer such, and who come to this country, should be liable for arrest at the magistrates’ court rather than be under the consideration of the DPP?
Lord Wallace of Saltaire
I hesitate to interrupt the noble Lord but I remind him that we are on Report and this is becoming rather more of a Second Reading speech than a speech on Report, which should be narrowly connected to the amendment under discussion.
Lord Palmer of Childs Hill
Thank you. I am happy to bring it back to the amendment. The amendment supposes that it is right to instruct the Director of Public Prosecutions what he or she should do. I believe that DPPs past and present are able so to do without the amendment.
Baroness Tonge
My Lords, this debate reminds me of those cycle races in velodromes where everyone waits for the first rider to break from the pack and start racing. I hope that not too many people will catch me up, but I expect they will. I am sure that a noble Lord sitting behind me will catch me up.
I will briefly run through once again the current right of a private citizen to initiate a private prosecution by applying to a senior district judge to issue an arrest warrant for such criminals as war criminals. We are not talking about ordinary crimes, but about very big war crimes committed against international law. This ancient, common right has belonged to the people of England and Wales for many years. It is a valuable safeguard against political interference by the Government. This is why I have objected so strongly to the proposed change in Clause 155, which could delay an arrest, allowing the suspect to escape, and could introduce political interference from the Attorney-General who might influence a decision of the Director of Public Prosecutions. The noble and learned Baroness, Lady Scotland, almost indicated this by linking the whole chain of command to the Attorney-General. I am no lawyer, but I thought that the Attorney-General was a Minister of our Government—an officer of the Government. The noble and learned Baroness was almost admitting that political interference could occur.
Baroness Scotland of Asthal
My Lords, I am very happy to assist the noble Baroness. The Attorney-General has three roles, as many noble Lords may know. The first is to advise to Her Majesty the Queen, the Government and Parliament. The second—the Attorney of the day must do this independently—is to supervise and superintend all the prosecutorial authorities in this country. The third is to be the guardian of the public interest and the rule of law. The second and third roles are exercised entirely independently from the ministerial role. The Attorney of the day can be relied on to remain a stalwart guardian of the public interest and, if necessary, to challenge acts of Government and Parliament. Any Attorney worth their salt should do that without fear or favour.
Baroness Tonge
I thank the noble and learned Baroness for that explanation. I found it a little reassuring, although in the past I as an innocent layman felt that this did not always happen. The fear remains that there may be political interference if this ancient common right is taken away.
I must progress. As I have already said, this right has not been abused in the past. There have been only 10 applications in 10 years, only two of which have been successful. The only reason that I heard the Government give in Committee for introducing the change was that it might be abused in the future.
Lord Campbell-Savours
Should the noble Baroness not be asking whether the Attorney-General might ever in any circumstances have in mind a political position taken by the Government in determining his or her decision?
Baroness Tonge
I do not want at this stage to get into a debate on the Attorney-General. It would be to intrude into areas where I am not expert. There was a very famous case in the recent past where the Attorney-General was alleged to have been influenced by the Government. However, this is not why I want to speak tonight.
The clause worries me because of the debate around it. We must accept that there is a debate.
Baroness Scotland of Asthal
I wonder whether the noble Baroness would reconsider what she has just said. The noble and learned Lord, Lord Goldsmith, is not in his place. It would be a courtesy, if such an assertion is made, to ensure that he is present to respond to it.
Baroness Tonge
I apologise to the House, and I agree with the noble and learned Baroness. In fact, I did not make an assertion; I said that there were incidents in the past where, allegedly, that had occurred.
When we look at this issue, we begin to think—certainly, the people who lobby me in great numbers think—that the real reason for the change in the law was the incident relating to Tzipi Livni. The Foreign Secretary, for whom I have high regard, argued that in the case of Tzipi Livni, the law had been abused when an arrest warrant was issued against her. He stated that:
“She is an Israeli politician of great importance, and a strong advocate of the peace process”.—[Official Report, Commons, 24/3/11; col. 1130.]
That may be, but he did not criticise the evidence against her contained in the arrest warrant which had been obtained by a private citizen.
Lord Carlile of Berriew
I am grateful to my noble friend for allowing me to interrupt, and I am extremely surprised that we have not heard my noble friend on the Front Bench intervening in the way in which he intervened on my noble friend Lord Palmer of Childs Hill a few minutes ago. What my noble friend is saying is out of order, inappropriate and not related to the amendment. She is having a rant at Mrs Livni.
Lord Wallace of Saltaire
I was considering rising on precisely that point. This is Report, and we are intended to stick very closely to the amendment. This speech is ranging very widely, much more widely than is normal on Report.
Baroness Tonge
Nevertheless, my Lords, this is an extremely important issue that shows the general public how our Government conduct themselves. It is important that these things should be said and put on record. I am not going to be silenced on the grounds that this is Report. Many other people have talked at length on other subjects.
Lord Wallace of Saltaire
I am very sorry, but we are on Report, and there are rules of the House. I understand the passion with which the noble Baroness is speaking, but the rules on Report are rather tight, and there are other occasions on which one can make these points. I think the sympathy of the House is limited in this respect. We need to address the amendment, and that briefly.
Baroness Tonge
My Lords, this puts me in some difficulty because I wanted to contrast the way we had altered our law at the request of a foreign Government, which is how it is perceived, and how we plan—
Baroness Tonge
I am not going to give way again. I must finish. We must contrast this action with what has happened in the past couple of weeks where Raed Salah, a Palestinian—
Lord Carlile of Berriew
My Lords, I have only a few words to add. I am sorry that my noble friend Lady Tonge has chosen to disobey the normal rules of the House and has stormed out in a way which is not appropriate to noble Lords and noble Baronesses in this House. It is something that I, as a member of her party, feel very strongly about, and I hope that none of my noble friends would normally behave in that way. It is quite shocking.
I would say, and I was about to say in her presence, that she has completely misunderstood the role of the Attorney-General and the Director of Public Prosecutions. I was involved in some negotiations during the previous Government as a person who was keen to extend the cover of the universal jurisdiction. It was made clear to me as part of the package—there were other Members of your Lordships' House of all and no parties involved—that an absolute requirement to make acceptable the broadening of the universal jurisdiction was a provision of this kind.
The basic reason is that we have only one standard of prosecution in this country. It is a good standard, it is set out in the current version of the Code for Crown Prosecutors, and it is completely politically independent. There was a discussion as to whether the provision in Clause 155 should be applied to the Attorney-General—the noble and learned Baroness at the time—or the Director of Public Prosecutions. It was decided, precisely to emphasise the principle of political independence, that the Director of Public Prosecutions should be the person named.
Having said that, I absolutely agree with every word the noble and learned Baroness has said about the role of the Attorney-General. Indeed, I was fortunate enough to receive an e-mail that winged its way from sunnier climes, where the noble and learned Lord, Lord Goldsmith, is busily engaged in unavoidable other activities. I was very flattered to receive the e-mail. In it he said that he supports this clause and is opposed to the amendment, as he said with great eloquence in Committee.
Lord Carlile of Berriew
No, I am not going to give way because I think we have spent—all right, I will give way to the noble Lord because I like him.
Lord Campbell-Savours
I tried to take a very neutral position when I originally moved my amendment. However, it should be made absolutely clear whether the Attorney-General could ever be influenced by a political position taken by a Government in any decision that he or she might take, in any circumstances.
Lord Carlile of Berriew
The noble Lord knows how much I admire him, so if I say that is a really silly question I do so in a spirit of generosity. The answer is that we in this Parliament—and the noble Lord has been in this Parliament a lot longer than I have—have to make certain assumptions. Those assumptions include what the noble and learned Baroness, Lady Scotland, the former Attorney-General, said to the House a few moments ago. The sanction for people—and Governments —who behave in that way is that they will lose the confidence of Parliament. The question that the noble Lord puts is so hypothetical as to be absurd, in my experience and, I believe, in his political life too.
I do not want to delay the House too long. All I really wanted to say about the amendment is that in Committee the noble Lord, Lord Pannick, achieved a superb deconstruction of the amendment, and he has done it again today. I do not really want to add anything to what he said, together with the support that he received from the noble and learned Baroness, and indeed the very cogent summary that we received from a non-lawyer, my noble friend Lord Palmer of Childs Hill—thank God we have non-lawyers who are prepared to speak in these debates. I close by simply saying that this clause from the coalition Government, which I and my noble friends usually support, has been introduced in a continuous thread from what was agreed by the previous Government. It brings a single high standard of prosecution to this country and one that can be changed, as it has been in new versions of the Code for Crown Prosecutors test.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, I start by agreeing with the observations of the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Scotland, that it is important that we have an efficient system of prosecution available in this country to deal with cases, when the evidence is available, that relate not only to war crimes but also to many of the other offences listed in this clause in respect of which the United Kingdom has sought to assert universal jurisdiction. My noble friend Lord Palmer of Childs Hill made it clear that nothing in this clause seeks to end universal jurisdiction, nor indeed does it end the right of private prosecution for universal jurisdiction cases. Although such grave offences may well seem better suited to prosecution by the state, we think it right that citizens should be able to prosecute them.
Clause 155 allows anyone to apply to a court to initiate a private prosecution for universal jurisdiction offences by using arrest warrants where appropriate. It prevents a warrant being issued in cases where there is no realistic prospect of a viable prosecution taking place. As these are cases where issuing a warrant would achieve nothing, that is surely right. That point was made by my noble friend Lord Thomas of Gresford in moving his amendment. Indeed, with a singular exception, no one has dissented from the reform and from the purpose of Clause 155, which introduces the consent of the Director of Public Prosecutions. Through this amendment, what we are looking at is the question of whether the criteria applied and approach taken by the DPP in giving consent is something which should be on the face of the Bill. It is certainly the Government’s view, which I think is shared by most noble Lords who contributed to the debate, that it should not.
Those of us who have read the clear and cogent evidence given by the DPP to the Public Bill Committee in the other place will have seen clearly how, if Parliament passes this provision, he intends to exercise the duty of whether or not to give consent. He has also made it clear that he proposes to apply the same code tests to the evidential and public interest tests that are used for prosecutions generally, and he has further indicated, as has been mentioned in this debate, that where necessary he would apply the lesser standard of the threshold test. He indicated to the Public Bill Committee that he intends to publish guidelines so that everyone will know how he would deal with decisions on whether or not to give consent.
I, too, want to endorse the comments of noble Lords that we can have confidence that the DPP will exercise his discretion properly. He has a track record which gives us full confidence that he will do that. I share the view expressed by my noble friend Lord Carlile of Berriew, the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Scotland, that that is a good reason not to inhibit that discretion by putting things into statute. These tests are of general application and it is not clear why they should be set in stone by this amendment. Indeed, in Committee my noble friend Lord Carlile said that the amendment attempts,
“to fix in statutory stone something that is much more evolutionary—and needs to be”.—[Official Report, 16/6/11; col. 1011.]
We would not wish to stop that evolution, particularly given the commitment to transparency on the part of the DPP.
A further point was noted by the noble and learned Lord, Lord Goldsmith, in Committee and has been highlighted today, not least by the noble Lord, Lord Pannick. It relates to the public interest dimension of the threshold test, which is not mentioned in the amendment. I rather thought that my noble friend Lord Thomas was suggesting that it was not necessarily part of the threshold test. However, paragraph 5.12 of the Code for Crown Prosecutors states:
“If both parts of the Threshold Test are satisfied, prosecutors must apply the public interest stage of the Full Code Test based on the information available at that time”.
If we put something in statute, there is a danger of actually missing something out that is in the test as it applies at the moment. Perhaps that underlines why it is not desirable to have this in legislation.
My noble friend has indicated that he is not going to press his amendment, and I think that will meet with the general support of the House. I encourage him to confirm that.
Lord Thomas of Gresford
My Lords, a great deal of heat has been engendered in the course of the debate and I do not propose to add to it, although certain things were said about deconstructing this amendment with which I do not agree. However, I can take them up at a different time. Let me make it clear that there have been discussions between my noble friend Lord Macdonald and Mr Keir Starmer and they have come to a conclusion that is acceptable to both; namely, that the test should be published in guidance. No doubt it will be applied appropriately and in accordance with the traditions of this country, which are that the Director of Public Prosecutions and the Attorney-General should act in the public interest and not for the purposes of any political party. I beg leave to withdraw the amendment.
Baroness Browning
“(d) an order under paragraph 16 of Schedule 15 which contains provision amending an Act (whether or not it also contains other provision).”
Baroness Browning
“(3A) Section 100 and Schedule 15 apply to England and Wales and Scotland.”
“(5) Subsection (4) does not apply to the amendment made to section 2 of the Parks Regulation (Amendment) Act 1926 by section 152(A1) above (which accordingly extends to England and Wales only).”
Lord Rosser
“Expiration of and report on Chapters 1 to 6 of Part 1
(1) Except so far as otherwise provided under this section, Chapters 1 to 6 of Part 1 expire at the end of the period of 4 years beginning with the day on which section 1 of that Part comes into force.
(2) Before the expiry of Chapters 1 to 6 of Part 1, the Secretary of State must—
(a) organise an independent review of the policing governance arrangements introduced by those Chapters.(b) publish a report on the policing governance arrangements introduced by those Chapters, and(c) lay a copy of the report in Parliament.(3) The report required under subsection (2) must, in particular—
(a) set out the objectives intended to be achieved by the policing governance arrangements in Chapters 1 to 6 of Part 1;(b) assess the extent to which those objectives have been achieved, and(c) assess whether those objectives remain appropriate and, if so, the extent to which they could be achieved with different arrangements.(4) The Secretary of State may, by order, revive Chapters 1 to 6 of Part 1 if a draft of such an order is laid before and approved by an affirmative resolution of both Houses of Parliament.
(5) An order made by the Minister under this section is to be made by statutory instrument.
(6) A draft order laid before Parliament under subsection (4) must be accompanied by a copy of the report required under subsection (2).”
Lord Rosser
The Bill represents a major change for policing in England and Wales. Concerns have been expressed about the lack of effective checks and balances on commissioners and their unchallenged powers. Concerns have been expressed about the impact of the strategic policing requirements and the proposed national crime agency on the new arrangements. Concerns have been expressed about the impact of the relationship between the PCCs and chief constables on the latter’s operational responsibility. Concerns have been expressed about the impact of the new policing structure on relationships and working arrangements with other bodies, including local authorities. Concerns have also been expressed about the impact of the proposed new arrangements on levels of crime and the impact of the politicisation of the police, which, frankly, this Bill introduces.
The Government agree that their proposals represent a major change. Amendment 311 calls for an independent review of the policing governance arrangements and for a report to be prepared, laid before Parliament and approved by Parliament. The report must set out the objectives intended to be achieved by the new policing governance arrangements, the extent to which those objectives have been achieved, and whether they remain.
It does not seem unreasonable to call in the amendment for an assessment to be made of the impact of the new governance arrangements, what their objectives are and whether they are being achieved within the period of four years provided for in it if the provisions of the Bill are to remain in force. I hope that the Government will agree to the amendment and its provisions for an independent review of what they themselves accept is a major change for policing in England and Wales.
Baroness Hamwee
My Lords, I do not agree with the amendment, for the following reasons. Noble Lords will be well aware of my concerns about the Bill, so I say this with a certain force. This legislation seems no different from other legislation that is contentious. It will be on the statute book in some form or other and able to be reviewed, renewed or repealed by a later Government—indeed, by the same Government, who may have second thoughts about it. I hope that it will be reviewed, but as part of a programme of post-legislative scrutiny, which it is high time Parliament had in place. Even without that post-legislative scrutiny, we have from time to time been reminded by the Leader of the House that there is an arrangement—it seems to me to be fairly loose, but I am assured that it exists—for substantial new legislation to be reviewed by government, which I do not think is the same as Parliament, after it has been in force for three years. Of course, if we had more time, I might tease the noble Lord about why he feels that it is necessary to provide for someone else to do something in four years.
Baroness Browning
My Lords, Amendment 311 would mean that the police and crime commissioner provisions of the Bill cease to have effect after four years unless, following an independent review and report, the House approves an order by the Secretary of State for the arrangements to continue.
Many noble Lords have spoken in the course of these debates of the risk of disruption to the police service, and I have set out as we have gone along how that will be minimised. However, it would be extremely disruptive to the police service if, a few months before the second set of elections, the elected PCC is removed and the unelected police authority is re-established.
I hear what my noble friend Lady Hamwee says about review. I fully support the principle that legislation is reviewed. I say this having served in another place for nearly 20 years. We get very excited about legislation when we are legislating and after a year or two we forget about it. Then things transpire and we think that perhaps we should have looked at it. As a principle that is a very good thing. However, I am unable to accept Amendment 311 as it would be extremely disruptive. I ask the noble Lord to consider withdrawing it.
Lord Rosser
My Lords, the key phrase in the contribution of the noble Baroness, Lady Hamwee—I think I have written it down correctly—was: “I hope that it will be reviewed … as part of post-legislative scrutiny”.
Baroness Hamwee
I said:
“as part of a programme of post-legislative scrutiny”.
Lord Rosser
I think the noble Baroness is being somewhat optimistic if she believes that is necessarily going to happen.
The amendment provides for an affirmative decision by Parliament on the report that would be produced. The Minister said that it would be extremely disruptive for the police. Of course, it would also be extremely disruptive for the biggest system change in policing for years to continue if did not work or operate properly as Parliament intended. If it is working properly, no doubt the report would be received and the affirmative resolutions would be carried. If it is not working, surely it is only appropriate that it should be challenged and processes put in place to try to put it right.
However, I do not intend to pursue this matter to a vote. I have expressed my views on the response that I have received from the noble Baroness and the reason why I think the amendment is justified. I beg leave to withdraw the amendment.